


Executive Jurisdiction in Diplomatic Affairs.—Constitutional 
Limitations Protect the Presidential Office.—The Organic 
larv Inhibits Interference by the Legislative Department 
with the Exercise of Executive Functions.—The Case of Julio 
Sanguily. 




IN THE 



THURSDAY, FEBRUARY 25, AND FRIDAY, FEBRUARY 26, 1897. 









WASHING-TOX. 

1897. 

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M. WHITE, 


The Senate having under consideration the joint resolution (S. R. 207) de¬ 
manding the release of Julio Sanguily, an American citizen, imprisoned in 
Cuba— 

Mr. WHITE said: 

Mr. President: Some time ago I determined to offer certain 
suggestions with relation to the Cuban question, and especially 
concerning the Presidential jurisdiction regarding recognition of 
independence. But as the session was drawing to a close, and as 
the chairman of the Committee on Appropriations and other 
members of that committee specially charged with the consider¬ 
ation of those very important measures warned us that there was 
no time to be spared, I concluded that the Senate would devote 
itself to the examination of the appropriation bills, and felt that it 
would be inopportune for me to interject remarks upon another 
subject. I therefore withheld my views, intending to offer them 
later on if they seemed relevant to anything that might hereafter 
occur. But the proceedings this morning have demonstrated 
that it is not the intention of the Senate of the United States to 
engage in the business of considering appropriation bills and that 
we are to spend valuable hours in sensational utterances. We are 
to engage in fruitless argumentation upon a resolution which can 
' not pass, and which, if passed, would not become effective or even 
receive Executive consideration; a resolution which could not aid 
Mr. Sanguily and would, on the contrary, interfere with the effort 
now being properly made to accomplish his release. 

A resolution was offered several weeks past in this body with ref¬ 
erence to Cuban independence. That resolution was not pressed. 
It came in here with considerable flourish of trumpets, if I may 
be permitted to use such an expression, and was sidetracked. 
Some reason, no doubt, existed for this. I have no complaint to 
make on this account, for I am now and have been opposed to its 
passage. 

When the chairman of the Committee on Appropriations [Mr. 
Allison] last night informed the Senate that it was necessary to 
sit until midnight in order to pass bills to appropriate money to 
maintain this Government, we were all made aware of the danger 
of delay, and yet this morning the Senator deliberately displaced 
the appropriation bills, and practically declared to the people of 
the United States that the Senate will not, though it can, pass 
measures of controlling importance, and will needlessly thus create 
an absolute necessity for the calling of an extra session, while in 
the opinion of some of us such necessity would not exist if we 
attended to our plain duty and ceased the making of disturbing 
remarks. 

If we are to discuss Cuba, we shall go on and discuss it. Both 
sides shall be heard. After a debate which can not be short we 
2313 ’ 3 


BPBEO 

or 

HON. STEPHEN 






4 


will vote upon a resolution, the passage of which can not, as I 
have said, he followed by any desirable consequences. 

Mr. HALE. Will the Senator from California yield to me? 

The PRESIDING OFFICER, Does the Senator from Califor¬ 
nia yield to the Senator from Maine? 

Mr. WHITE. Certainly. 

Mr. HALE. Allow me to suggest here that up to this moment 
from the beginning of the session all the time on this great sub¬ 
ject-matter has been taken up by those who are in favor of what 
are called the Cuban resolutions. Senators who have not believed 
it was wise to embark upon that subject or to pass declarations 
inflammatory in their nature, which -would tend to complicate the 
situation, have contented themselves, as the Senator from Califor¬ 
nia has, as I have, and as have a dozen other Senators, with 
saying nothing, but depending upon the general conservative 
spirit of the Senate to go on and do business. We are now within 
seven or eight days of the end of the session, and Senators should 
understand that, with this whole subject precipated, those Sena¬ 
tors who heretofore have declined to participate in the debate and 
have allowed it to go on by the advocates of the Cuban resolutions, 
can not consent that this matter shall be voted upon until it is 
thoroughly debated, and it can not be said and urged that it is in 
the interest of delay, because up to this time hardly one Senator 
has lifted his voice against any of these resolutions. We have 
been content to go on and do business, I repeat, and desire now to 
do that, but Senators may as well understand that here, within 
one -week of the end of the session, with all the appropriation bills 
which have not been passed pending, to take up this question and 
to begin to debate it and to follow its debate until the question is 
taken, substantially confiscates every hour of this session, and no 
appropriation bill can be passed. 

I trust the Senators who voted to displace an important appro¬ 
priation bill in order to take up this joint resolution will realize 
that we shall not be taunted because we choose to debate this sub¬ 
ject, which the Senate has taken on against our votes, with the 
charge that we are delaying matters. We have a right to be heard, 
Mr. President, on this question as well as all of the Senators who 
have fulminated before the country ever since last December, and 
who will only be content now in dragging this discussion before 
the Senate. The matter will be discussed, and the other side will 
be presented. 

Mr. WHITE. Mr. President, in connection with the remarks 
of the senior Senator from Maine, I may be permitted to observe 
that I have taken much interest in the legal aspects of this ques¬ 
tion; but I have refrained from indulging in any lengthy debate, 
or doing more than to ask a very occasional question of Senators 
occupying the floor, because I did not wish to interfere with other 
measures. 

The resolution now forced upon us presents so many grave ques¬ 
tions that those of us who differ from the majority of the Com¬ 
mittee on Foreign Relations should not remain silent, and I for ono 
do not propose to do so. I intend expressing my opinions. It can 
not be truly stated that I am so acting to consume time, because 
my course in the past has been demonstrative of my desire in the 
other direction. If I can prevent the accomplishment of a mis¬ 
taken plan, I will do so. 

Let me ask, preliminarily, What is the object attempted to be 
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brought about by precipitating this discussion at this time, really 
in violation of the agreement which was tacitly had last night, to 
devote this day's session to the consideration of appropriation bills? 
From 11 o’clock this morning until this moment we have been en¬ 
gaged in discussing this resolution reported by the Committee on 
Foreign Relations only yesterday, accompanied by a report of 98 
pages, a large portion of it closely printed. Are we entitled to 
examine that report? Can this be done in a minute? 

Assuming that there is reason for the passage of this resolution, 
assuming that there is a result in sight, and a desire to benefit 
this unfortunate man—though the course adopted is most hurtful 
to him—assuming all this, let me inquire by what authority and 
in what manner do Senators who are so fervid expect to accom¬ 
plish anything by its passage in this body? .Let it be granted that 
the Senate of the United States shall adopt it; let it be granted 
that those of us who oppose the views of the majority of the Com¬ 
mittee on Foreign Relations shall remain silent and allow every¬ 
thing to be said by the other side and permit the resolution to go 
through intact. Then the House of Representatives is reached; 
grant that it shall be accorded a favorable reception there—and 
this is purely a matter of assumption—then, as the resolution is 
joint, it must be presented to the President of the United States. 
Is it to be supposed that he will approve it? Manifestly not. I 
speak from the record, a record of which every Senator should bo 
thoroughly cognizant. The executive department of this G-ov- 
ernment has had this affair under advisement. The President 
has been acting within the lines of his authority and has consid¬ 
ered this very issue. He has done his duty as he understands it, 
and if lie is to be consistent he will pocket this joint resolution. 
Do the advocates of this resolution think that anything practical 
is to be gained by pressing it here and now? It will not benefit 
Sanguily. It will avail no one. 

Mr. HILL. Will the Senator allow me a moment? 

Mr. WHITE. Certainly. 

Mr. HILL. The premier of the next Administration reported 
this joint resolution to the Senate yesterday. 

Mr. WHITE. Yes, sir. 

Mr. HILL. And while he would not ask it to be acted upon 
then, he expressed a hope that the Senate would take it up to-day 
and pass it at once. It is whispered to me from the rear that he 
voted against its consideration to-day; but I was not going to 
make that statement. I simply suggest that even if the Senate 
alone passes the resolution, it will at least have some moral effect 
upon the next Administration, I should hope. 

Mr. WHITE. I differ from the Senator from New York. I 
hope the Senator from New York will not make it incumbent on 
the chairman of the Committee on Foreign Relations to carry 
into liis policy as Secretary of State the views which he has 
announced in this Chamber. 

Mr. HILL. Why should he not be consistent? 

Mr. WHITE. It is within his power and sole jurisdiction, Mr. 
President, it appears to me, to be or not to be consistent [laughter], 
and I submit that the Senator from New York should not seek to 
tread within that sacred circle. [Laughter.] 

It is a fact that the Committee on Foreign Relations, having had 
Cuban affairs under their consideration, and having had an oppor¬ 
tunity to press them when a final vote might have been reached, 
2613 


G 


have nevertheless waited until the appropriation bills have come 
here, and then have sought a final decision. I for one, occupying 
a seat upon the minority side of this Chamber, do not wish it 
truthfully charged that I have been a participant in the defeat of 
appropriation bills, but I do not propose to be foreclosed of my 
right to discuss this subject which has been incontinently and 
improperly interjected into our business. 

I think I have shown, Mr. President, that nothing of good can 
follow the adoption of this joint resolution even by the Senate 
and the House. It has no place here. Sanguily does not need it. 
Common sense dictates that his case will not be furthered by its 
adoption. Why not withdraw it? 

Mr. President, there are several resolutions on the Calendar 
touching the Cuban question. That part of our history which 
covers Cuban disturbances is rather a peculiar one. I will pre¬ 
sent the general resolution 1G3, which I ask may be read at the 
desk. 

The PRESIDING- OFFICER (Mr. Faulkner in the chair). 
The Secretary will read as requested. 

The Secretary read as follows: 

That it is hereby declared that a condition of public war exists between 
the Government of Spain and the government proclaimed and for some time 
maintained by force of arms by the people of Cuba, and that the United States 
of America should maintain a strict neutrality between the contending pow¬ 
ers, according to each all the 1 ’ights of belligerents in the ports and territory 
of the United States. 

Mr. WHITE. Then there was introduced the following reso¬ 
lution by the Senator from Georgia [Mr. Bacon] : 

Resolved by the, Senate (the House of Representatives concurring ), That the 
question of the recognition by this Government of any people as a free and 
independent nation is one exclusively for the determination of Congress in 
its capacity as the lawmaking power. 

Resolved f urther , That this prerogative of sovereign power does not apper¬ 
tain to the executive department of the Government, except in so far as'the 
President is, under the Constitution, by the exercise of the veto, made a 
part of the lawmaking power of the Government. 

Then we have the joint resolution of this morning, which has 
already been read, but which I shall incorporate in my remarks, 
accompanied, as I said before, by Report No. 1534, comprising 96 
pages of largely, closely printed matter. 

The joint resolution is as follows: 

Resolved by the Senate and House of Representatives, etc.. That the Govern¬ 
ment of the United States demands the immediate and unconditional release 
of Julio Sanguily, a citizen of the United States, from imprisonment and 
arrest under the charges that are pending and are being prosecuted against 
him in the military and civil courts of Cuba, upon alleged grounds of rebel¬ 
lion and kidnaping, contrary to the treaty rights of each of said Govern¬ 
ments and in violation of the laws of nations. 

And the President of the United States is requested to communicate this 
resolution to the Government of Spain, and to demand of that Government 
such compensation as he shall deem just for the imprisonment and sufferings 
of Julio Sanguily. 

We have not adopted the resolution regarding independence. 
At the last session we expressed an opinion favoring recognition 
of belligerency. This was a mere expression of opinion, "it was 
in no way binding on the Executive. Our attitude is peculiar. 
We are not willing to recognize the independence of Cuba. In 
my judgment we are without power to do so. Then we are ex¬ 
pected to demand the release of an alleged American citizen 
charged with the commission of crime abroad. We are required 
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to find his citizenship, to declare him innocent, and to, by impli¬ 
cation, censure the Department of State. All this is to be done 
without examination—proceeding upon faith entirely—in the last 
days of this Congress. 

Mr. President, the termination of this Administration will soon 
be witnessed. Everyone in this Chamber knows that upon the 
most important and radical issue before the American people I 
dissent from the position of Mr. Cleveland as clearly and as fully 
as I expect to dissent from the financial policy of the Administra¬ 
tion of Mr. McKinley, but I do not permit my views upon one or 
a dozen subjects to interfere at all with my defense of the conduct 
of the Executive in the matters now under review. I deem it my 
duty to see that something is presented in justification of the Presi¬ 
dent and the Secretary of State with reference to unfounded accu¬ 
sations of usurpation which have been repeated with wearying 
frequency here and elsewhere. Were the appropriation bills 
allowed a right of way, I would postpone my observations; but I 
must deal with conditions as I find them. 

The joint resolution reported by the Senator from Alabama 
who sits in front of me [Mr. Morgan] , with the indorsement of 
the Senator from Ohio [Mr. Sherman] , who is to be the Secretary 
of State, comes to us just as this Administration is going out. 
The Senator from Ohio, as the head of the diplomatic department 
of the incoming Government, will soon attend to this matter him¬ 
self. Instead of coming here as chairman of his committee and 
now seeking to put the burden upon us, let him wait a few days 
and take the responsibility himself. He will have to do so ulti¬ 
mately. Why does he not abstain rather than to join in an effort 
to defeat the appropriation bills and precipitate a discussion which 
can have only that result, and which will not, I assure him, end 
in the passage of the joint resolution here pending? 

Mr. SHERMAN. Will the Senator allow me? 

The PRESIDING OFFICER . Does the Senator from California 
yield to the Senator from Ohio? 

Mr. WHITE. I yield to the Senator from Ohio gladly. 

Mr. SHERMAN. Mr. President, the Senator from California 
seems to desire to drag me into this debate when I certainly do 
not care to enter upon it. 

As to the joint resolution which is pending, I think it ought to 
command the unanimous approval of the Senate. I believe in the 
declaration that injustice, gross injustice, almost barbarous 
injustice, has been done to a naturalized citizen of the United 
States, and I say, therefore, that his rights, the rights of even a 
single person, ought to be respected, guarded, and protected by 
the Senate of the United States. 

I have not, however, been in favor, and am not now in favor, 
of passing this joint resolution at this moment when it stands in 
the way of appropriation Dills. I have so voted and shall so vote 
again, and I trust that, after the debate has gone on for a while, 
Senators here will see the necessity of taking up the appropria¬ 
tion bills and passing them. . 

I do not think there is any matter of criticism m the lact that 
this joint resolution was reported from the Committee on Foreign 
Relations by the honorable Senator from Alabama [Mr. Morgan] 
rather than by myself. That was done because he has taken 
a more active interest in the subject than I. He has prepared a 
long, full, and detailed report setting out every material fact 

2613 


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which bears upon tlie case. Therefore at my request that Sena¬ 
tor properly reported the joint resolution, and I shall vote for it. 

I hope that Senators will not be carried otf merely because they 
have been defeated upon a question of the order of business. 
They themselves stand in the way of a vote on this resolution. I 
believe the friends of the joint resolution are willing to vote upon 
it without delay, and thus the opinion of the Senate may be had 
and the appropriation bills be taken up; but to say that, because 
we desire this joint resolution to be passed, we are opposed to the 
passage of appropriation bills is a gross injustice to us. I intend 
to support and stand by the Committee on Appropriations this day 
and until the end of the session, in order that they may complete 
all the appropriation bills which are necessary in order to carry 
on the operations of the Government; but that shall not prevent - 
me from doing what I think is right in behalf of any of the people 
of the United States to protect our citizens against unlawful in¬ 
solence, violence, and w T rong. I trust in God the time will never 
come when I shall see an American citizen wronged of his rights 
and persecuted and prosecuted unjustly by any power, great or 
small. That is the way I feel now. 

I am in favor of protecting this particular American citizen, 
although he is a naturalized citizen, in all the rights of man. I 
■would not see him destroyed or driven to the fate of another natu¬ 
ralized citizen who was probably compelled to kill himself, or who 
was killed in custody. I am opposed to wrong and violence and 
tyranny wherever it is exercised, and when it is inflicted upon a 
citizen of the United States I will stand by him if I am alone. 

Mr. WHITE. Mr. President, we are all opposed to wu’ong. Of 
course we are all in favor, I hope, of protecting American citi¬ 
zens. I am as resolute in this as the Senator from Ohio. Some 
of us differ as to exactly how we should go about it; some of us 
prefer that an American citizen should be actually protected, 
wdiile some prefer to talk of protection without bringing it about. 
The American citizen who behaves himself will be protected. 
Whether he acts lawfully or otherwise, he will be guarded in his 
rights. But I must have a case reasonably proven before I can 
act. 

The Senator from Ohio, as chairman of the Committee on For¬ 
eign Relations, allowed this joint resolution to be brought in, when 
he knew that thereby he would precipitate a debate and that noth¬ 
ing practical could come of it. Did he think that those of us who 
have refused heretofore to engage in discussions because we did 
not wish to interfere with legislation would be driven from the 
assertion of our conscientious opinions by the pretext that we were 
consuming time, and this because we do not wish an obnoxious 
resolution to be voted upon? The Sanguily matter has been be¬ 
fore his committee for months, and he selected the most inoppor¬ 
tune time for this display. The Senator from Alabama is an able 
man and thoroughly conversant with these questions, but the 
Senator from Ohio did not escape any responsibility for himself 
when the Senator from Alabama reported the resolution. The 
Senator from Ohio, knowing that this resolution could not be 
adopted, knowing that within ten days he will be in charge of the 
State Department, still risked the defeat of the appropriation bills. 
Having done that, he turns around and says he is in favor of taking 
up the appropriation bills and regrets the disturbance which lie 
himself has inflicted upon us. This may appear to the Senator 
2613 


9 


' n 


from Ohio to "be consistent. It does not appear to me to be voz 7 
consistent. 

More than that, the Senator says that he ascertained that Julio 
Sanguily was being badly treated. When did he learn that? 
Within the last two or three days? As chairman of the Commit¬ 
tee on Foreign Relations, he ought to have known as much about 
this matter as those of us who are not upon that great committee. 
There was brought into the Senate many, many days ago, Senate 
Document 104, setting forth all the evidence contained in the re¬ 
port of the committee presented to us this morning. So this sub¬ 
ject was before the Senator from Ohio, and before those who sym¬ 
pathize and agree with him, weeks ago, and action was withheld 
until this late hour, when, as I have stated, the able and conserva¬ 
tive Senator who is chairman of the Committee on Appropriations 
had announced the impossibility of legislation unless we devote 
unremittingly each full day remaining to our proper work. Sen¬ 
ate Document 104, containing all this evidence, was filed here on 
February 1 of this year, and its contents, it is safe to say, were 
known to the Senator from Ohio much earlier. If he has other 
information, he has not disclosed it. 

The merits of Julio Sanguily’s complaint can be dealt with by 
the Senator from Ohio in ten days from this date in accordance 
with his views of the proprieties. That it can not be dealt with 
earlier, except in accordance with the views of the present Ad¬ 
ministration, is a fact which, whether he likes it or not, he must 
concede. Why, then, press the resolution? The first and most 
important question, perhaps, calling for examination, is that 
involving the power of Congress to pass a general resolution of 
recognition, either of belligerengy or independence. It is not jiro- 
posed to rely upon legislation enacted upon any supposition or 
presumption, but it is sought to directly recognize the independ¬ 
ence of an alleged Cuban republic, not only without Executive 
concurrence, but in the face of the fact that the Executive has 
steadfastly declined to make such recognition. It is the deter¬ 
mination of the advocates of Congressional power to force recogni¬ 
tion in spite of the Executive. Can this be done? At the outset 
it is proper to consider whether Congress has any such power, 
and if it is ascertained that the authority exists, whether a proper 
case has arisen for its exercise. 

When it was stated that the Secretary of State claimed that the 
Executive possessed the exclusive authority to recognizepndepend- 
ence, he was denounced in many quarters, not only in various 
newspapers, but also upon this floor; and it was even stated here 
that the doctrine which he advanced was absolutely novel, and 
that no similar pretension had ever been made. This groundless 
assertion lias been so far modified that a distinguished Senator 
who ably advocated the so-called Cuban side of the controversy 
declared that the claim was first made twenty-three years ago. It 
will be easy to show that not only is there nothing new in the re¬ 
cent announcement of the Secretary of State, but that the view 
which he has taken seems to be supportable on principle, and is 
certainly in accord with the best precedents, diplomatic and judi¬ 
cial. There is nowhere in the Constitution a direct delegation, in 
terms, of power to recognize belligerency. Nothing of the kind is 
contained in the legislative grant, nor does specific phraseology 
conferring the authority manifest itself in that part of the organic 
law which is devoted to the executive department. It was lately 
2G13 


%\s < 


10 


Baid by a most able and learned Senator, with regard to the con¬ 
stitutional provisions referring to the Congress, that— 

There are more provisions devoted to that subject than to any other. Ic 
precedes the judicial department; it precedes the executive department; it 
is first in time, first in right, power, and authority. 

And the same learned Senator further remarked: 

If, then, the President perversely and lawlessly refuses or declines to ap¬ 
point an ambassador when Congress desires one in the form of law, we could 
direct by law that he should appoint one to a particular country; and in case 
of his further refusal, wo could name and designate a person as our political 
agent to perform such duties as are usually performed by the Presidential 
appointee, because such a power is necessary and proper to the execution of 
the paramount power of Congress to regulate our intercourse with foreign 
nations. And we may well note here how close this construction is in har¬ 
mony with the Constitution, a harmony designed in all its parts, because such 
an appointee by Congress, the person temporarily designated by Congress, 
vested with ambassadorial, consular, or ministerial powers would receive a 
two-thirds vote of both Houses of Congress, the Senate and the House of Rep¬ 
resentatives, a larger majority than if he had been appointed and commis¬ 
sioned by the President and the Senate to that office, for such law could only 
be passed over the veto of the President by a two-thirds vote of both the 
Senate and the House. 

Notwithstanding my high regard for the abilities and character 
of the distinguished Senator from whom I have quoted, I find my¬ 
self unable to subscribe to this doctrine. While it is true that "a 
law which passes over the Presidential veto receives a larger ma¬ 
jority than would an appointee of the President confirmed by the 
Senate, yet it appears to me that this is not the point at all. The 
treaty-making power is vested in the Executive, subject to the 
advice and consent of the Senate, and while a treaty may be re¬ 
pealed by a law, it can not be made in any other way than that 
designated in the organic instrument. The President must pro¬ 
pose the treaty. He may withdraw a treaty before ratification. 
He may decline to submit an amended treaty to the other contract¬ 
ing power. If the Senate unanimously votes to make a treaty, 
such vote is of no effect unless the Executive submits the conven¬ 
tion. 

President Harrison, without consulting the Senate or either 
branch of Congress, recognized the Dole Government of the Ha¬ 
waiian Islands, and the Secretary of State, on the loth of Febru¬ 
ary, 1893, placed before Congress a treaty of annexation entered 
into by this Government with the representatives of the new estab¬ 
lishment of Hawaii. This treaty was being considered by the 
Senate when it was withdrawn by President Cleveland, and 
although it has been generally supposed that a majority of the 
Senate favored the scheme outlined in that document, no oppor¬ 
tunity was given to vote upon it, and no one denied the authority 
of the President to withdraw the proposition; and whether the 
Senate relished Mr. Cleveland’s action or did not relish it was en¬ 
tirely immaterial. He had the constitutional power to act as he 
did, and although Senators might have considered that they were 
better advised in the premises than the President, nevertheless 
this faith in themselves was not potential enough to overcome 
constitutional obstacles. 

I can not bring myself to believe that the mere fact that Con¬ 
gressional powers are enumerated earlier in the Constitution than 
those of the Executive adds anything to the authority expressly 
given. The words used to confer power upon the Executive are 
just as potential for the purposes named as those which demark 
legislative limits. While it is true, perhaps, that the more w T eiglity 
2613 


ii 




obligations are assigned to the Congress, yet this does not affect 
the completeness and exclusiveness of the Presidential grant as 
far as made. If the Supreme Court, contumaciously or corruptly, 
fails to decide cases submitted to it, Congress can not, for that 
reason, do the work of the court. The argument that there is 
danger that the President may refuse to do his duty is not new. 
It was largely acted upon in the formulation of the Articles of Con¬ 
federation, but the views of our early statesmen were considerably 
modified when the constitutional convention met. That power 
given might be abused all knew. It was not expected that a sys¬ 
tem could be devised which would render usurpation or other mis¬ 
conduct impossible. Various duties were assigned to different 
officers in the hope that such distribution would result beneficially, 
and that evil would less frequently prevail than under other dis¬ 
pensations. The claim made that the President represents the one- 
man power and Congress the people is mythical. 

The President and Congress and the judiciary each and all rep¬ 
resent the people, and the Government thus formed constitutes 
that system, composed of three independent departments which 
the people have ordained. The department which is the repos¬ 
itory of executive power is the creation of the people and repre¬ 
sents their behests, and he w T ho seeks to deprive the executive of 
those rights attacks the people and endeavors to avoid the popular 
will constitutionally expressed. Congress can not usurp execu¬ 
tive functions. If the President may not exercise power conferred 
upon Congress, so also is it true that Congress can not trench upon 
executive territory. The functions permitted to the executive and 
those committed to the judiciary and Congress in the aggregate 
constitute, as I have said, the governmental scheme outlined in 
the organic law. It appears to me peculiar to hold that the defined 
and limited jurisdiction of the Congress possesses an absorbing 
and accumulating nature adequate to draw to itself the nonas- 
serted powers of the other departments, that Congress is the bene¬ 
ficiary of executive nonaction. 

If it be true that we are governed under a system of delegated 
powers, under what rule of construction can we hold that, al¬ 
though the Constitution gives to the President and does not give 
to Congress the power to appoint ambassadors, nevertheless, if 
the President refuses to do so, Congress may undertake his con¬ 
stitutional duty? It seems to be thought that the exigencies of 
the situation will justify this. Ido exigency can warrant the 
doing of any act by either department not permitted by the Con¬ 
stitution. The powers not conferred by the Constitution are 
reserved. This reservation is not made in favor of Congress, It 
was not designed to give plenary authority to Congress. The 
people, it is true, jealously'guarded their rights, hut the whole 
plan was formed to protect their interests. The experiences of 
the confederation had not been lost. The ablest men of the time 
believed that three departments, distinct, independent, each sepa¬ 
rated from the other by impassable lines, were essential to the 
perpetuity of free institutions. Neither of these can lawfully 
grasp jurisdiction because of nonexertion by the department to 
which it has been committed. 

The absolute separation of the executive from the other depart¬ 
ments was early the subject of solicitude. In the convention Mr. 
King expressed his apprehension that an extreme caution in favor 
of liberty might enervate the Government we were forming. Ho 
2013 


12 


wished the House to recur to the primitive axiom that the three 
great departments of government should he separate and inde¬ 
pendent; that the executive and judiciary should he so as well as 
the legislative; that the executive should he so equally with the 
judiciary. Those who desire to study this portion of the debates 
will find it in the Second Journal Constitutional Convention 
(Madison), page 304. 

During the debate upon the executive power, Mr. Madison said 
(I Journal, page 387): 

If it be a fundamental principle of free government that the legislative, 
executive, and judiciary powers should be separately exercised, it is clear 
also that they be independently exercised. There is the same and perhaps 
greater reason why the executive should be independent of the legislative 
than why the judiciary should. 

This, Mr. President, is the language of Madison. 

It was well said by the Supreme Court of the United States in 
Marbury vs. Madison (1 Cranch, 176): 

The powers of the legislature are defined and limited, and that those limits 
may not be mistaken or forgotten, the Constitution is written. To w'hat pur¬ 
poses are powers limited and to what purpose is that limitation committed to 
writing if these limits may at any time be passed by those intended to be re¬ 
strained? The distinction between a government with limited and unlim¬ 
ited powers is abolished if those limits do not confine the persons on whom 
they are imposed, and if acts prohibited and acts allowed are of equal obli¬ 
gation. 

And in the same case it was also said: 

Questions in their nature political, or which are by the constitu tional laws 
submitted to the Executive, can never be made in this court. 

In Kendall vs. United States (12 Peters, 610) the court said: 

The executive power is vested in a President, and as far as his powers are 
derived from the Constitution he is beyond the reach of any other depart¬ 
ment, except in the mode prescribed by the Constitution through the im¬ 
peaching xiower. 

The very basis of our governmental plan is the distribution of 
responsibility among the several departments. Unquestionably 
the Executive may fail to do his duty, and great public interests 
may be sacrificed; but so, also, may it be said that Congress may 
fail to act discreetly, and thereby sacrifice grave public interests. 
Charges of that kind have been'often made, and there has been 
much evidence in support of the accusations. 

If Congress has the right to appoint an ambassador in the case 
already mentioned, who is to determine whether the refusal of 
the President to make an appointment has been perverse or law¬ 
less? The answer will probably be that Congress must determine 
the fact. Therefore, it necessarily results that whenever the legis¬ 
lative department may decide to harass the President, it can find 
this jurisdictional fact and can thereupon assert his prerogatives, 
and practically exercise the functions, of government committed 
to him. 

But I am unable to find a word in the Constitution directly or 
by implication assigning Presidential functions to Congress when 
the Executive declines to act affirmatively. As well might it be 
urged that a similar failure of Congress, with reference to some 
conceded duty, such as appropriating money for necessary public 
purposes, would vest authority in the President to meet the exi¬ 
gency. With equal reason it might be contended that because 
the Senate to-day declines to act upon appropriation bills, and 
devotes itself to issues upon other topics, that therefore the Presi¬ 
dent alone lias the power to appropriate money. 

2613 


I 



13 


Presidential obligation or Congressional duty are not enjoined 
conditionally. The grant is in each instance absolute. Neither 
department has a contingent right to move. The location of juris¬ 
diction is fixed by the instrument and not by the whim or caprice 
of the official. It can always be found. It needs no expert to dis¬ 
cover it, nor is it located first here and then there. The plea that 
somebody could act the fool or the knave was no doubt a factor in 
the convention's deliberations. If it was believed that a man 
selected to the highest national office could be trusted to obey the 
Constitution, especially with the sword of impeachment hanging 
over him, such assumption was probably based upon the idea that 
the people would most likely choose an honest and capable man, 
and that the presence of such honesty and capability was neces¬ 
sarily involved in the faith of the fathers that a republican gov¬ 
ernment was possible. 

The authors of the Federalist frequently had occasion to refer 
to the division of power, and they strenuously contended that 
proper lines of demarcation had been provided. There is not a 
hint anywhere indicating that it was supposed that Congress had 
the right to exercise in any event or at all the duties assigned to 
the Executive. 

The President has power to grant reprieves and pardons, except 
in cases of impeachment, and this authority is exclusive, as stated 
in Klein's case. (13 Wall. U. S., 138.) He is also given jurisdic¬ 
tion, by and with the advice of the Senate, to make treaties, and 
he shall nominate and by and with the advice of the Senate shall 
appoint ambassadors, etc. The exclusiveness of the grant is as 
evident in the case of the executive as in the Congressional and 
judicial instances. Mr. Justice Story says: 

In the government of this commonwealth the legislative department shall 
never exercise the executive or judicial powers, or either of them, etc. (1 
Story, Cons., section 520.) 

James Wilson, who was an associate justice of the Supreme 
Court of the United States and professor of law in the College of 
Philadelphia, in the course of a lecture delivered by him on “Gov¬ 
ernment” (to be found in volume 1, Wilson’s Works, Andrews’s 
edition, page 365) says: 

Though the foregoing great powers, legislative, executive, and judicial, 
are all necessary to a good government, yet it is of the last importance that 
each of them he preserved distinct and unmingled in the exercise of its sepa¬ 
rate powers with either or with both of the others. Here every degree of 
confusion of the plan will produce a corresponding degree of interference, 
opposition, combination, or perplexity in its execution. * * * Liberty 

and security in government depend not on the limits which the rulers may 
please to assign to the exercise of their own powers, but on the boundaries 
within which their powers are circumscribed by the constitution. 

He further says (page 3G7) —and his language may be quoted with 
appropriateness here: 

Each of the great powers of government should be independent as well as 
distinct. * * * The independency of each power consists in this, that its 
proceedings, and the motives, views, and principles which produce those 
proceedings, should be free from the remotest influence, direct or indirect, of 
either of the other two powers. 

In speaking of the power of the President to grant pardons, Mr. 
Rawle (Rawle on the Constitution, page 164) concludes that in 
the case of a vacancy in the office of President there is no power 
to grant pardons, and remarks (page 166) that in the exercise of 
the benign prerogative of pardoning it has been justly said that 
the President stands alone. 

2013 


14 


The authors of the Federalist understood that they were giving 
to the President considerable authority. 

Mr. Madison’s remarks, to be found in the thirty-eighth number 
of the Federalist, pages 291,292, Hamilton’s edition, clearly prove 
that he was not only cognizant of the fullness of executive power, 
but that he justified it. 

In discussing the objections made to the Constitution with ref¬ 
erence to the blending of powers, Mr. Madison declares (47 Fed¬ 
eralist, 373): 

No political truth is certainly of greater intrinsic value or is stamped 
with the authority of more enlightened patrons of liberty than that on 
which the objection is founded. The accumulation of all powers, legislative, 
executive, and judiciary, in the same hands, whether of one, a few, or many, 
and whether hereditary, self-appointed, or elective, may justly be pro¬ 
nounced the very definition of tyranny. Were the Federal Constitution, 
therefore, really chargeable with this accumulation of power, or with a mix¬ 
ture of powers, having a dangerous tendency to such an accumulation, no 
further arguments would be necessary to inspire a universal reprobation of 
the system. I persuade myself, however, that it will be made apparent to 
every one that tho charge can not be supported, and that the maxim on 
which it relies has been totally misconceived and misapplied. 

I quote again from Mr. Madison: 

It is agreed on all sides that the powers properly belonging to one of the 
departments ought not to be directly and completely administered by either 
of the other departments. It is equally evident that neither of them ought 
to possess, directly or indirectly, an overruling influence over the others in 
the administration of their respective powers. It will not be denied that 
power is of an encroaching nature, and that it ought to be effectually re¬ 
strained from passing the limits assigned to it. 

After discriminating, therefore, in theory, the several classes of power, as 
they may in their nature be legislative, executive, or judicial, the next, 
and most difficult task, is to provide some practical security for each against 
the invasion of the others. What this security ought to be is the great prob¬ 
lem to be solved. 

Will it be sufficient to mark, with precision, the boundaries of these de¬ 
partments, in the Constitution of the Government, and to trust to these 
parchment barriers against the encroaching spirit of power? 

This is the security which appears to have been principally relied on by 
the compilers of most of the American constitutions. But experience assures 
ns that the efficacy of the provision has been greatly overrated, and that 
some more adequate defense is indispensably necessary for the more feeble 
against the more powerful members of the Government. The legislative 
department is everywhere extending the sphere of its activity, and drawing 
all power into its impetuous vortex. 

Said Mr. Justice Harlan, in Clougli vs. Curtis (134 U. S., 371): 

One branch of this Government, this court said in the Sinking Fund Cases 
(99 U. S., 700), can not encroach on the domain of another without danger. 
The safety of our Constitution depends in no slight degree on the strict ob¬ 
servance of this salutary rule. 

It is undoubtedly true, as said by Chief Justice Fuller in Ex 
parte Tyler (149 U. »S., 104), that the maintenance of a system of 
checks and balances characteristic of republican institutions re¬ 
quires the coordinate departments of Government, whether Fed¬ 
eral or State, to refrain from infringement on the independence 
of each other. 

It might be added that the lodgment of concurrent authority in 
the executive and legislative departments could never have been 
intended. The confusion sure to ensue from such a plan is man¬ 
ifest. Nor is there any reason to suppose that any Presidential 
prerogative is made dependent upon the nonaction of Congress. 
If there is a word in the Constitution justifying the assertion that 
the President has the right to recognize independence until Con¬ 
gress sees fit to act, and that then his power ceases, it has not been 
pointed out. The Presidential power in this respect has been 
2613 


t 


15 


exercised during recess and when Congress was in session, and 
has never been successfully combated. 

By affixing his signature to an act or a treaty containing such phrase, tho 
President does not effect any change in the Constitution. He can not take 
constitutional power in virtue of any clause of an act of Congress; nor can 
ho so surrender it. The constitutional power of each of tho three great de¬ 
partments of the Government, respectively, belongs to the offices, not the 
officers, and can not, by any act or words of theirs, he withdrawn from the 
permanent and pervading authority of the Constitution. (7 Op. Atty. Gen. 
(Cushing), 276.) 

Said Attorney-General Black (9 Op. Atty. Gen., 468-469): 

As Commander-in-Chief of the Army it is your (tho President’s) own judg¬ 
ment what officer shall perform any particular duty, and as the supreme 
executive magistrate you have the power of appointment. Congress could 
not, if it would, take away from the President, or in any wise diminish, the 
authority conferred upon him by the Constitution. * * * If Congress had 
really intended to make him independent of you, that purpose could not be 
accomplished in this indirect manner any more than if it was attempted di¬ 
rectly. Congress is vested with legislative power; the authority of the Presi¬ 
dent is executive. Neither has a right to interfere with the functions of the 
other. 

Whether the powers conferred upon Congress are more impor¬ 
tant than those devolving upon the President it is immaterial to 
inquire. It may be assumed for the sake of argument that the 
greater responsibility rests upon the former. It is, nevertheless, 
true that the failure on the part of the President to exercise those 
functions which pertain to his office and which are not permitted 
to Congress, can not result in an investiture of authority in the 
legislative department; nor is it correct to say that the framers of 
the Constitution intended to subordinate the Executive to the 
Congressional will in cases other than those where such intention 
is plainly announced. 

In considering the President, Hamilton said (The Federalist, 
No. 73, page 546): 

The propensity of the legislative department to intrude upon the rights 
and to absorb the powers of "the other departments has been already more than 
once suggested; the insufficiency of a mere parchment delineation of the 
boundaries of each has also been remarked; and the necessity of furnishing 
each with constitutional arms for its own defense has been inferred and 
proved. 

In further discussing the reasons for the conferring of authority 
upon the President, Mr. Hamilton continues (page 547): 

The propriety of tho thing does not turn upon the supposition of special 
wisdom or virtue in the Executive, but upon the supposition that the legisla¬ 
tive will not be infallible; that the love of power may sometimes betray it 
into a disposition to encroach upon the rights of the other members of the 
Government; that the spirit of faction may sometimes prevent its delibera¬ 
tions; that impressions of the moment may sometimes hurry it into measures 
which its own mature reflection would condemn. 

Examples of this kind are, as we all know, of frequent occur¬ 
rence. These expressions were used with reference to the veto 
power, but demonstrate that the legislative department was not 
regarded as constituting an errorless tribunal. 

The same view of the subject has been taken by constitutional 
writers since that time. Justice Miller, in his Lectures on Consti¬ 
tutional Law, page 94, mentions the fear which was entertained 
with reference to the powers of the executive, and in commenting 
thereon he says: 

This belief, though natural enough at that time, was a very great mistake. 
The nearer we approach to individual responsibility in the executive, the 
nearer will it come to perfection. It is my deliberate opinion that of all the 
2613 


16 


three branches which have been discussed, the executive has been in time, 
under the construction given to the Federal Constitution and its practical 
administration, most shorn of the powers granted to it thereby. * * * But 
the branch of the Government which has grown the most, and which a saga¬ 
cious man might, perhaps, have foreseen would so expand, is the legislative. 

Justice Miller also says (Lectures, page 157): 

The experience of a century of the operations of the Government has 
shown that while the growth of the country in territory, in population, in 
wealth, and in power has added largely to the patronage of the Executive in 
the Avay of appointments to office and to the importance of those offices, and 
while the frequent accession of successfril and popular military chiefs to the 
Presidency, some of whom were men of arbitrary disposition, and well in¬ 
clined to the exercise of all the power which the Constitution gave them, and 
who have shown in every instance a disposition for a continuance in power 
by seeking or accepting a reelection, there has never been the slightest dan¬ 
ger to the liberties of the country, or of an overthrow of the existing institu¬ 
tions, or of any material infraction of the general principles of constitutional 
government from this quarter. In fact, of all the three branches of the con¬ 
stitutional government of the United States, the executive has been the most 
crippled, confined, and limited in its practical use, during the period men¬ 
tioned, of the power really conferred on it. 

See also Story on the Constitution, section 1570. 

These comments, it is submitted, are sufficient to justify the 
statement that the powers delegated to the Executive by the or, 
ganic law are not, in the event of his neglect to exercise the same- 
vested in any other department of the Government. It is true that 
impeachment can scarcely be called a remedy, but it is likewise 
true that the power to impeach is a deterrent, and the responsi¬ 
bility of the President to the people and the authority vested in 
Congress to impeach him constitute ample security against mal¬ 
administration. To assume that it is necessary or that it would 
be proper to otherwise limit the authority of the Chief Magistrate 
is to insinuate that the system under which we are operating is a 
failure, and that the people can not find within their midst a man 
to whom the discharge of the obligations of the Chief Magistracy 
can be safely confided. I will hereafter discuss the relative fit¬ 
ness of the Executive and Congress to deal with diplomatic ques¬ 
tions. 

During the convention Mr. Morris remarked, in response to a 
suggestion by Mr. Madison, who favored the trial of the President 
on impeachment proceedings by the Supreme Court, that he 
thought no other tribunal than the Senate could be trusted. The 
Supreme Court were too few in number, and might be warped or 
corrupted. He was against a dependence of the Executive on the 
Legislature, considering the legislative tyranny the great danger 
to be apprehended; but there could be no danger that the Senate 
would say untruly, on their oaths, that the President was guilty 
of crimes or facts, especially as in four years he can be turned out. 

Those who are curious with reference to this interesting portion 
of the discussion can find it in 5 Elliott's Debates, page 528. 

It is evident that these great men deduced from their impartial 
study of the question the conclusion that it was necessary to guard 
against legislative usurpation. 

THE RIGHT TO RECOGNIZE THE INDEPENDENCE OR BELLIGERENCY OF A 
FOREIGN GOVERNMENT IS VESTED EXCLUSIVELY IN THE EXECUTIVE. 

I understand that it is generally conceded that the President 
has the power to recognize belligerency and independence, but it 
is claimed that this power is not exclusive, and that it is subject 
to the paramount authority of Congress. However, suggestions 
have been made to the effect that the Executive does not possess 
2613 


17 


the power at all; that it is purely legislative. I will therefore first 
consider the subject in that aspect, and if I can show that the 
power does exist in the Executive, its exclusive character must, I 
think, be admitted. 

It appears to me that if the President has the authority at all, 
such authority must be exclusive. I can not conceive, as already 
intimated, that there can be a concurrent delegation of the power 
to recognize to both Congress and the Executive, and it seems to 
me clearly untenable to assert that while the President may, if 
Congress remains passive, recognize belligerency or independence, 
nevertheless his action can be neutralized or reversed by act of 
the legislative department. But I will examine this branch of the 
subject as the argument progresses. 

Among Presidential duties is that which authorizes the reception 
of ambassadors and other public ministers. 

# Judge Story, perhaps the ablest commentator upon the Constitu¬ 
tion, treats this section as follows: 

Sec. 1565. The next power is to receive ambassadors and other public minis¬ 
ters. This has been already incidentally touched. A similar power existed un¬ 
der the confederation; but it was confined to receiving “ambassadors,” which 
word, in a strict sense (as has been already stated), comprehends the highest 
grade only of ministers, and not those of an inferior character. The policy of 
the United States would ordinarily prefer the employment of the inferior 
grades; and therefore the description is properly enlarged, so as to include all 
classes of ministers. Why the receiving of consuls was not also expressly 
mentioned, as the appointment of them is in the preceding clause, is not easily 
to be accounted for, especially as the defect of the confederation on this head 
was fully understood. The power, however, may be fairly inferred from 
other parts of the Constitution; and, indeed, seems a general incident to the 
executive authority. It has constantly been exercised without objection; and 
foreign consuls have never been allowed to discharge any functions of office 
until they have received the exequatur of the President. Consuls, indeed, are 
not diplomatic functionaries or political representatives of a foreign nation, 
but are treated in the character of mere commercial agents. 

Sec. 1566. The power to receive ambassadors and ministers is always an 
important and sometimes a very delicate function, since it constitutes the 
only accredited medium through which negotiations and friendly relations 
are ordinarily carried on with foreign powers. A government may, in its 
discretion, lawfully refuse to receive an ambassador or other minister with¬ 
out its affording any just cause of war. But it would generally be deemed 
an unfriendly act, and might provoke hostilities unless accompanied by con¬ 
ciliatory explanations. A refusal is sometimes made on the ground of the 
bad character of the minister, or his former offensive conduct, or of the spe¬ 
cial subject of the embassy not being proper or convenient for discussion. 
This, however, is rarely done. But a much more delicate occasion is when a 
civil war breaks out in a nation, and two nations are formed, or two parties 
in the same nation, each claiming the sovereignty of the whole, and the con¬ 
test remains as yet undecided, flagrante bello. In such a case a neutral na¬ 
tion may very properly withhold its recognition of the supremacy of either 
party or of the existence of two independent nations, and on that account 
refuse to receive an ambassador from either. It is obvious that in such cases 
the simple acknowledgment of the minister of either party or nation might 
be deemed taking part against the other, and thus as affording a strong coun¬ 
tenance or opposition to rebellion and civil dismemberment. On this account, 
nations placed in such a predicament have not hesitated sometimes to de¬ 
clare war against neutrals as interposing in the war, and have made them 
the victims of their vengeance when they have been anxious to assume a neu¬ 
tral position. The exercise of this prerogative of acknowledging new na¬ 
tions or ministers is therefore, under such circumstances, an executive 
function of great delicacy, which requires the utmost caution and delibera¬ 
tion. If the Executive receives an ambassador or other minister as the repre¬ 
sentative of a new nation, or of a party in a civil war in an old nation, it is an 
acknowledgment of the sovereign authority de facto of such new nation or 
party. If such recognition is made, it is conclusive upon the nation, unless, 
indeed, it can be reversed by an act of Congress repudiating it. If, on the 
other hand, such recognition has been refused by the Executive, it is said that 
Congress may, notwithstanding, solemnly acknowledge the sovereignty of 
the nation or party. These, however, are propositions which have hitherto 
remained as abstract statements under the Constitution, and therefore can 

2613—2 


18 


be propounded, not as absolutely true, but as still open to discussion if they 
should ever arise in the course or our foreign diplomacy. The Constitution 
has expressly invested the Executive with power to receive ambassadors and 
other ministers. It has not expressly invested Congress with the power 
either to repudiate or acknowledge them. At all events, in the case of a 
revolution or dismemberment of a nation, the judiciary can not take notice 
of any new government or sovereignty until it has been duly recognized by 
some other department of the Government to whom the power is constitu¬ 
tionally confided. 

Sec. 1567. That a power so extensive in its reach over our foreign relations 
could not be properly conferred on any other than the executive department 
will admit of little doubt. That it should be exclusively confided to that de¬ 
partment, without any participation of the Senate in the functions (that body 
being conjointly intrusted with the treaty-making power), is not so obvious. 
Probably the circumstance that in all foreign governments the power was 
exclusively confided to the executive department, and the utter impractica¬ 
bility of keeping the Senate constantly in session, and the suddenness of the 
emergencies which might require the action of the Government, conduced to 
the establishment of the authority in its present form. 

Plainly indicating that it was the view of that distinguished 
jurist that the Constitution had vested this authority not tempo¬ 
rarily, not during a recess of Congress, but permanently and ex¬ 
clusively in the executive department. He continues: 

It is not, indeed, a power likely to be abused, though it is pregnant with 
consequences often involving the question of peace or war. And in our 
own short experience the revolutions in France and the revolutions in South 
America have already placed us in situations to feel its critical character 
and the necessity of having at the head of the Government an Executive of 
sober judgment, enlightened views, and firm and exalted patriotism. 

Sec. 1568. As incidents to the power to receive ambassadors and foreign 
ministers, the President is understood to possess the power to refuse them, 
and to dismiss those who, having been received, become obnoxious to censure, 
or unfit to be allowed the privilege by their improper conduct, or by political 
events. While, however, they are permitted to remain as public function¬ 
aries, they are entitled to all the immunities and rights which the law of na 
tions has provided at once for their dignity, their independence, and their 
inviolability. 

In a note to Judge Story’s work we find the following: 

N ote 1.—It is surprising that The Federalist should have treated the power 
of receiving ambassadors and other public ministers as an Executive function 
of little intrinsic importance. Its language is, “ This, though it has been a 
rich theme of declamation, is more a matter of dignity than of authority. It 
is a circumstance which will be without consequence in the administration 
of the Government. And it was far more convenient that it should be ar¬ 
ranged in this manner than that there should be a necessity of convening 
the Legislature, or one of its branches, upon every arrival of a foreign minis¬ 
ter. thoiigh it were merely to take the place of a departed predecessor.— The 
Federalist , No. 69, page 421. 

It is perhaps fair, let me observe, to assume that the attack made 
upon this provision did not arrest great attention. The avowed 
purpose of The Federalist was to discuss only objections made by 
the opponents of the proposed plan, which seemed to be serious. 
The failure to regard this provision as of vital import was not as¬ 
tonishing because of the absence of circumstances which eventu¬ 
ated in later years. That The Federalist was not always conclu¬ 
sive, appears by reference to No. 77, where it is expressly stated 
that the President possesses the power to remove officers only by 
or with the advice and consent of the Senate—a misconception 
long indulged in. (See 5 Op. Atty. Gen. (Crittenden), 290, 291.) 

Judge Story, in that portion of the commentaries to which I 
have alluded, says: 

. on the other hand, such recognition has been refused by the Executive, 
it is raid that Congress may, notwithstanding, solemnly acknowledge the 
sovereignty of a nation or party. 

It will be noted that the learned commentator does not adopt 
this opinion, but the authority to which he refers is Rawle on the 

‘--613 


i 


19 


Constitution, chapter 20, pages 195,19G. Mr. Rawle published his 
commentaries in 1825. Although his work was exceedingly valu¬ 
able, yet some of his conclusions were found to be untenable, and 
the book has practically passed out of print. It is not easy to dis¬ 
cover where Mr. Rawle found the authority for his statement, 
and his contention is successfully combated by Judge Story, not 
only in the comments which I have read, but in a decision by that 
great jurist to which I will in a moment allude. Judge Story’s 
work was published in 1833, and afterwards, and while lie was an 
associate justice of the Supreme Court of the United States, he 
rendered the decision in Williams vs. The Suffolk Insurance Com¬ 
pany (3 Sumner, 272 et seq.). He there said: 

The Government of Buenos Ayres insists that the Falkland Islands consti¬ 
tute a part of the dominions within its sovereignty, and, consequently, that 
it has the sole jurisdiction to regulate and prohibit the seal fishery at those 
islands, and to punish any violation of its laws by a confiscation of the vessels 
and property engaged thei'ein. On the other hand, the American Govern¬ 
ment'insists that the Falkland Islands do not constitute any part of the 
dominions within the sovereignty of Buenos Ayres; and that the seal fishery 
at those islands is a trade free and lawful to the citizens of the United States, 
and beyond the competency of the Buenos Ayres Government to regulate, 
prohibit, or punish. The controversy is still undisposed of by the two Gov¬ 
ernments, each maintaining its own claims and pretensions, and neither ad¬ 
mitting the claims or pretensions of the other. In this state of the diplomacy 
between the two countries, while the whole matter is in contestation between 
them, or, as we may say, flagrante lite, the question is whether it is compe¬ 
tent for this court to reexamine and decide, in its judicial capacity, upon the 
claims and pretensions of the two Governments, and thus to interpose its 
positive umpirage to settle the matters in dispute, at least to the extent re¬ 
quired for the proper adjudication of the cases now before it. 

It will be noted the issue was clearly presented. The material, 
the vital, the relevant issue was whether the islands named be¬ 
longed or did not belong within a certain jurisdiction, and therein 
was involved the other question as to whether a determination had! 
been legally reached upon that subject. He continues: 

My judgment is that this court possesses no such authority, and that it is 
bound up by the doctrines and claims insisted on by its own government, and 
that it must take them to be rightful until the contrary is established by 
some formal and authorized action of that government. 

Now, let us see how the “ government ” alluded to manifested 
its decision. 

I wish to direct the attention of the Senate particularly to this 
judicial announcement: 

It is very clear, that it belongs exclusively to the executive department of 
our Government to recognize, from time to time, any new governments which 
“may arise in the political revolutions of the world; and until such new gov¬ 
ernments are so recognized, they can not be admitted by our courts of justice 
to have or to exercise the common rights and prerogatives of sovereignty.” 

Mr. President, here is a decision handed down in 1838, which 
clearly announces the doctrine for which the present Secretary of 
State, Mr. Olney, contends, and which has been lately condemned 
as revolutionary. Here it is announced from the bench by one 
of the ablest jurists who ever presided over a court, clearly and 
positively, that the power to recognize is not only vested in the 
Executive, but that such an investiture is exclusive. 

The Supreme Court of the United States affirmed the judgment 
in Williams vs. The Suffolk Insurance Company (13 Peters, 420), 
using this language: 

And can there be any doubt that when the executive branch of the Gov¬ 
ernment, which is charged with our foreign relations, shall in its corre¬ 
spondence with a foreign nation assume a fact in regard to the sovereignty of 
any island or country, it is conclusive on the judicial department? And m 

2613 


20 


this view it is not material to inquire, nor is it the province of the court to 
determine, whether the Executive be right or wrong. It is enough to know 
that in the exercise of his constitutional functions he has decided the ques¬ 
tion. Having done this under the responsibilities which belong to him, it is 
obligatory on the people and Government of the Union. 

If this were not the rule, cases might often arise in which, on the most 
important questions of foreign Jurisdiction, there would be an irreconcilable 
difference between the executive and judicial departments. By one of these 
departments a foreign island or country might be considered as at peace 
with the United States, whilst the other would consider it in a state of war. 
No well-regulated government has ever sanctioned a principle so unwise and 
so destructive of national character. 

And yet, Mr. President, we have heard it asserted again and 
again that this doctrine of the Supreme Court of the United 
States—the declared judgment of the highest judicial tribunal 
known to our law, promulgated many years ago—is unprece¬ 
dented. It has been even intimated that the Secretary of State 
w T ho proclaimed it risked impeachment. Perhaps it may be a 
crime to declare the law. It is clear that the Supreme Court be¬ 
lieved that the President in recognizing independence on his 
own responsibility did so “in the exercise of his constitutional 
functions.” 

I know that it was said by the distinguished Senator from Geor¬ 
gia [Mr. Bacon] that those portions of these decisions which 
relate to Executive jurisdiction are obiter dicta. It may be that it 
was unnecessary to decide whether or not the Executive authority 
was exclusive; but it is plain that the jurisdiction of the Execu¬ 
tive to effectively recognize independence was a material issue 
absolutely necessary to the decision of the case. These authori¬ 
ties are conclusive of the existence of Executive control if 
the Supreme Court has any jurisdiction to settle such questions. 
If the Executive, without Congress, can not recognize, then the 
basis of the court’s decision drops out. 

My object in citing this case is to disclose the views entertained 
by Judge Story and his associates. That jurist had considered 
the subject in his commentaries, as I have shown, and hence his 
attention had been specially directed to the matter, and he had 
also in mind Mr. Rawle’s view already referred to, and upon 
which he had commented, and, taking the expressions contained 
in the commentaries and those found in the decision in 3 Sumner 
above mentioned, it is obvious that it was the carefully thought- 
out opinion of J udge Story that the authority to recognize was 
exclusively in the Executive. 

I have had occasion to consider this topic to some extent when 
resolutions advising a recognition of belligerency were before the 
Senate, and I then referred to several adjudications, and I shall 
take the liberty of again citing some of them in brief. 

In 2 Black, 670, I find the following: 

Whether the President, in fulfilling his duties as commander-in-chief in 
suppressing an insurrection, has met with such armed hostile resistance and 
a civil war of such alarming proportions as will compel him to accord to them 
the character of belligerents, is a question to be decided by him, and this court 
must be governed by the decisions and acts of the political department of the 
Government, to which this power was intrusted. He must determine what 
degree of force the crisis demands. 

It is plain that it was the opinion of the Supreme Court that the 
President was authorized and was the proper party to find the 
facts as to belligerency. It is true that the conflict involved was 
domestic, but the citation is nevertheless relevant. It will be 
noted that “political department” is used as synonymous with 
2613 


21 


‘‘ executive department. ” Judge Story evidently thought that the 
word “government” was used as equivalent to “executive de¬ 
partment ” inG-elston vs. Hoyt (3 Wheat., 324), because that case 
is referred to by him in Williams vs. Suffolk Insurance Company 
as upholding the jurisdiction in the President to proclaim bellig¬ 
erency. 

In Kennett vs. Chambers (14 How., 50,51), Chief Justice Taney 
said: 

It is not necessary in the case before us to decide how far the judicial tri¬ 
bunals of the United States would enforce a contract like this, when two 
States, acknowledged to be independent, were at war and this country neu¬ 
tral. It is a sufficient answer to the argument to say that the question 
whether Texas had or had not at that time become an independent State 
was a question for that department of our Government exclusively which is 
charged with our foreign relations, and until the period when that depart¬ 
ment recognized it as an independent State, the judicial tribunals of the 
country were bound to consider the old order of things as having continued 
and to regard Texas as a part of the Mexican territory. 

In alluding to the constitutional power, or rather to the power 
of the President derived from the Constitution with reference to 
our foreign relations, I beg leave to quote from Chancellor Kent. 
Said that very able man: 

The President is the constitutional organ of communication with foreign 
powers. 

It was evidently the view of that able jurist that the Presidential 
duty in this respect was not derived from any statute and did not 
depend upon the will of Congress. 

Again he says: 

The power of receiving foreign ministers includes in it the power to dismiss 
them, since he (the President) alone is the organ of communication with them, 
the representative of the people— 

Not the representative of Congress, but “ the representative of 
the people ”— 

in all diplomatic negotiations, and accountable to the community not only for 
the execution of the law, but for competent qualifications and conduct of 
foreign agents. 

It is to be noted that according to this statement the President 
is the representative of the people in all diplomatic negotiations, 
and he is said to be accountable to the community. There is 
no intimation that he is accountable to Congress in this regard. 
He derives the authority from a higher source, from the people. 
He rests upon the consent of the governed, as evidenced by the 
Constitution. 

During the recent Chilean difficulty it was held by the district 
court of the United States for the southern district of California 
as follows: 

It is beyond question that the status of the people composing the Con¬ 
gressional party at the time of the commission of the alleged offense is to be 
regarded by the court as it was then regarded by the political or executive 
department of the United States. This doctrine is firmly established. (U. S. 
vs. Trumbull, 49 Fed., 99,104.) 

And in the Itata case (56 Fed., 510) Judge Hawley, speaking for 
the circuit court of appeals, said: 

The law is well settled that it is the duty of the courts to regard the status 
of the Congressional party in the same light as they were regarded by the 
executive department of the United States at the time the alleged offenses 
were committed. 

It thus appears that whenever our courts have been called on to 
solve an issue which depends upon the existence or nonexistence 
of a nation they have turned uniformly to the executive, and havo 
2613 


22 


accepted the determination of that department as conclusive and 
binding upon them. Can it be, Mr. President, that this jurisdic¬ 
tion thus affirmed by our judiciary and announced for years and 
years by all the departments of our G-overnment rests pro hac vice 
only in the Executive, and that his authority is of such flimsy 
tenure that it is subject to Congress; that he is possessed of the 
power to recognize onty when Congress does not see fit to with¬ 
draw it from him? Is there any scheme in the organic law for an 
appeal from Executive action in this matter? Either the power to 
recognize is vested in the Executive or it is not. If the right is 
conceded, then, in the absence of any constitutional limitation, it 
must, I assert, be exclusive. That he does not derive it from any 
act of Congress is obvious, for no one has pointed to an act of 
Congress presuming or pretending to give him any such right. 

I have said, Mr. President, in line, as I take it, with the au¬ 
thorities on which I have been commenting and to which I have 
attempted to attract the attention of the Senate, that if it be 
conceded that the Executive has the power to recognize inde¬ 
pendence, then, unless there can be pointed out in the Consti¬ 
tution some limitation of that power, some appellate jurisdiction 
in Congress, some restriction upon it, something justifying the 
conclusion that in the absence of Presidential exercise of that 
authority it may be assumed by Congress, the conclusion inevi¬ 
tably follows that the Presidential prerogative is attached to that 
office only, and that the President either derives his authority 
from the Constitution or he does not possess it at all. It further 
appears evident that if the Executive may recognize independence, 
the debate is at an end as to the point now considered, and the 
position of the Secretary of State is justified. 

Mr. Wharton, whose abilities as a lawyer and as an author and 
whose researches into matters pertaining to international affairs 
earned for him high reputation throughout the civilized ^w T orld, 
compiled a digest on the international law of the United States, 
pursuant to authority given by Congress and under the Congres¬ 
sional eye, and this work comes nearer constituting an accepted 
American text-book upon this subject than any other treatise. In 
discussing this subject, he heads the section with reference to bel¬ 
ligerency as follows: “ Such recognition (i. e.), belligerency deter¬ 
minable by Executive,” and he cites with apparent approval a 
statement of Secretary Seward in his letter to Mr. Dayton, wherein 
it is said: 

It is, however, another and distinct question whether the United States 
would think it necessary or proper to express themselves in the form adopted 
by the House of Representatives. This is a practically and purely executive 
question, and the decision of it constitutionally belongs not to the House of 
Representatives, nor even to Congress, but to the President of the United 
States. 

He was discussing at that time a proceeding in the House of 
Representatives touching the recognition of the alleged newly 
formed Government of Mexico, pertaining to a protest made by the 
House of Representatives, wherein they affirmed their hostility to 
the encroachments of monarchic powers within the confines of a 
sister republic. Mr. Seward thus asserted jurisdiction—exclusive 
jurisdiction—in the Executive, and in so doing he followed the 
line of precedents heretofore mentioned, and from which the State 
Department has deduced a uniform rule of conduct, and has 
regarded the claim of exclusive right in the Executive as based 
upon the correct interpretation of the Constitution. 

2d 13 


23 


While the Executive lias rarely, as in the case of President Jack- 
son in the Texas matter, sought the advice of Congress as to such 
issues, this advice has never been asked as signifying a doubt of 
the executive claim, or an assertion that the jurisdiction rested 
elsewhere than in the Executive. The opinion of Congress has 
been solicited merely in an advisory way. Congress often seeks 
to advise without being requested so to do, and may, I presume, 
when solicited, contribute the notions of its members. The value 
of such advice is quite another thing. No legal force can be 
affirmed of it. 

A question touching this topic was passed on by Chief Justice 
Marshall in United States vs. Hutchings (2 Wheeler Crim. Cases, 
516). The opinion of that able jurist is thus given by the reporter: 

The court decided that the commissions shall go to the jury merely as 
papers found on board the vessel; but on the main question the court was of 
opinion that a nation became independent from its declaration of independ¬ 
ence only as respects its own government and the various departments 
thereof; that before it could be considered independent by the judiciary of 
foreign nations it was necessary that its independence should be recognized 
by the executive authority of those nations; that as our Executive had 
never recognized the independence of Buenos Ayres, it was not competent 
to the court to pronounce its independence. 

It may be argued that here again the court’s conclusion is obiter 
dictum, but it was material whether the country in question had 
been acknowledged to be independent, and the judgment of the 
Chief Justice that that acknowledgment should be by the Execu¬ 
tive contains his opinion as to the character of recognition which 
must take place before the fact can be judicially assumed. The 
concurrence of opinion between Marshall, Story, and Taney, and 
other able jurists quoted, ought certainly be sufficient to relieve 
the Secretary of State from the charge of advancing a new and 
absurd claim—an accusation, it may be noted, which has been 
flippantly urged by some of the most widely circulated newspapers 
in the country and by persons in official position who ought to 
know better. It sometimes happens that an unfriendly feeling 
toward an individual or an officer begets ill-advised comment. 

In The Ambrose Light (25 Fed., 443), Judge Brown says: 

The additional facts proved show, however, such a subsequent implied 
recognition by our Government of the insurgent forces as a government da 
facto in a state of war with Colombia and entitled to belligerent rights as 
should prevent the condemnation of the vessel as prize. A communication 
from the Department of State to the Colombian minister, bearing date the 
day of the seizure, seems to me to constitute such a recognition by necessary 
implication. 

Here, therefore, the court not only conceded the right of the 
President to recognize belligerency, but even held that such rec¬ 
ognition was accomplished unintentionally by an executive com¬ 
munication. The action of the Executive, so taken and not 
designed to recognize belligerency, nevertheless fixed the legal 
status of this vessel, and justified a judgment against the Gov¬ 
ernment and relieved the vessel from condemnation as prize. 

The point determined was obviously material. I am aware 
that it has been said here, I believe without too much consid¬ 
eration, that w T e are not bound by the decisions of the courts. 
In one sense this may be true. As far as voting is concerned, 
we are scarcely bound by anything. When our names are 
called, we may vote as we please. But if we can not accept 
the construction placed upon the organic law for many, many 
years, for three or four generations, by our ablest judges, we are 
certainly inconsistent with the attitude which some of us assume 
2813 


24 


in criticising the Supreme Court because it lias lately changed its 
opinion as to certain propositions. 

Mr. Blaine, May 9,1881, in a letter to Minister Christiancy, said: 

If the Calderon Government is supported by the character and intelli¬ 
gence of Peru, and is really endeavoring to restore constitutional govern¬ 
ment, with a view both to order within and negotiation with Chile for peace, 
you may recognize it as the existing provisional government and render what 
aid you can by advice and good offices to that end. Mr. Elmore has been re¬ 
ceived by me as the confidential agent of such provisional government. 

As has already been remarked, it is well settled in diplomacy 
that the reception of a minister or agent vested with diplomatic 
functions is a recognition of the existence of the government 
which has sent the envoy here. Mr. Blaine did not consider it 
necessary to consult Congress upon this subject. He acted upon 
the theory that Congress had no authority in the premises. 

President Arthur, in his third annual message (1883), in speak¬ 
ing of the difficulties between Chile and Peru, and especially with 
reference to the uncertain nature of the government of the last- 
named country, said: 

Meanwhile the provisional government of General Iglesias has applied for 
recognition to the principal powers of America aiid Europe. If the will of 
the Peruvian people would be manifested, I shall not hesitate to recognize 
the government approved by them. 

In the message thus sent by President Arthur to the Congress of 
the United States, and regarding which no unfavorable comment 
has ever been made here or elsewhere, he wrote, “I shall not hesitate 
to recognize,” etc. President Arthur used the personal pronoun, 
and seemed to have no doubt of his right to completely recognize 
independence when, in his official judgment, the occasion might 
arise. 

Can there be such a thing as incomplete recognition of the inde¬ 
pendence of a government resulting from the declaration of the 
President seeking to directly recognize it? If the President of the 
United States to-day receives a minister from the alleged Republic 
of Cuba, would there be any doubt that that formal reception of 
the minister would be conclusive of the fact that the new govern¬ 
ment had been recognized as an independent state? 

When Dom Pedro relinquished his claim to the Brazilian throne, 
President Harrison acted promptly, and in his message to Con¬ 
gress (Foreign Relations 1890, page 4) he says: 

Toward the end of the past year the only independent monarchical govern¬ 
ment on the Western Continent, that of Brazil, ceased to exist, and was suc¬ 
ceeded by a republic. Diplomatic relations were at once established with the 
now government, but it was not completely recognized— 

Mark the phrase— 

until an opportunity had been afforded to ascertain that it had popular ap¬ 
proval and support. When the course of events had yielded assurance of 
this fact, no time was lost in extending to the now government a full and cor¬ 
dial welcome into the family of American commonwealths. 

Mark the phrases “completelyrecognized,” “full * " * wel¬ 
come into the family of American commonwealths.” Is a “com¬ 
plete” or “ full ” recognition subject to Congressional reversal? 
Here, therefore, is another Presidential communication to Con¬ 
gress, directly stating that the Executive not only recognized the 
Brazilian Government, but that he has left nothing to be done to 
complete the acknowledgement. Ho one has challenged the effi¬ 
cacy of that recognition, and I again ask, Will anyone say that 
Congress might have risen in its constitutional might and, by the 


25 

passage of a resolution, made void tliat which the President made 
complete? 

On December 9, 1891, President Harrison, in a message to Con¬ 
gress, stated that which I shall read. These communications were 
not confidential; they were notoriously made. The country knew 
all about them. They were printed as Congressional documents, 
and placed upon the desks of Senators and Representatives, and 
constitute a portion of the history of this Union. President Har¬ 
rison said: 

The civil war in Chile, which began in January last, was continued, but 
fortunately with infrequent and not important armed collisions, until August 
28, when the Congressional forces landed near Valparaiso and, after a bloody 
engagement, captured that city. President Balmaceda at once recognized 
that his cause was lost, and a provisional government was speedily estab¬ 
lished by the victorious party. Our minister was promptly directed to rec¬ 
ognize and put himself in communication with this government so soon as it 
should have established its de facto character, which was done. 

Hence the President, without consulting Congress, without ask¬ 
ing for the approval of Congress, without seeking the ratification 
of liis act, without submitting to any further scrutiny than every 
communication upon the state of the Union must have in this and 
the other body, sent instructions to Chile, to the American minis¬ 
ter, directing him, in virtue of the Executive authority, to recog¬ 
nize the changed condition. 

He also recognized the new Government of the Hawaiian Islands 
under circumstances which were, to say the least, novel. His 
ability to do this was never doubted, though the wisdom of its 
exercise was questioned. 

The references which I have thus made evince the uniform 
and unchallenged assertion of Executive jurisdiction, and what¬ 
ever may be the true construction of the Constitution, the power 
asserted was complete, absolute, and effective. No action of Con¬ 
gress was needed to ratify or approve. If there is any Congres¬ 
sional power to repudiate such recognition, it can be found nowhere 
in the Constitution, but is based upon the notion that Congress 
has powers not granted, and has the right to draw to itself all func¬ 
tions not accorded to or exercised by the other Departments, a con¬ 
tention absolutely in conflict with that organic provision which 
reserves to the people the powers not granted. 

The exclusive right of the Executive has been maintained in 
almost every instance, the exceptions being where the Executive 
thought it well to consult Congress, as did President Jackson in 
the Texas case. But even there he did not relinquish or doubt 
his authority. 

Mr. President, we are apt to confuse the true interpretation of 
our duty with the result toward which our inclinations point. 
When we seek to reach a desirable end, or when we find an inde¬ 
pendent officer exercising his authority in a manner differing from 
our ideas of propriety, we are too apt to seek to extend the limits of 
our domain and to interfere with subjects intrusted by law to 
other hands. Hence it is that legislators differing from the Execu¬ 
tive endeavor to defend their criticisms by assuming unwarranted 
jurisdiction. 

The exclusive right of the Executive has been maintained, as I 
have said, in almost every instance. President Jackson did not 
recognize the jurisdiction of Congress to do anything more than 
to advise. He was willing to act upon such advice, not because it 
was necessary for him to do so, but because in the discharge of 
2513 


26 


liis Executive power he thought it better to clo so. Nor is there 
anything in the resolution which was passed by Congress at that 
time assuming any greater authority or power than the giving of 
advice. There are expressions to be found, notably in remarks 
by Mr. Clay, not altogether consistent, I may say, upon this sub¬ 
ject. indicating to some extent that he believed Congress had au¬ 
thority in the premises. We have had such claims of power here, 
but we have no case where Congress has ousted Executive juris¬ 
diction. or where the proclamation of the Executive upon this 
subject has ever been repudiated. It seems tome a most peculiar 
view to assert that there is jurisdiction here not only to upset that 
which has been done, but to perform acts which it is thought 
ought to have been performed, but which the Executive has de¬ 
clined to do, and which the Constitution provides, if done at all, 
shall be done by the President. 

In the memorandum upon the power to recognize the independ¬ 
ence of a new foreign state (Senate Document No. 5G, Fifty-fourth 
Congress, second session) a large number of authorities are collated 
which it is unnecessary to review here. The references to the 
debates concerning the South American revolutions are quite 
interesting as demonstrating that at that very early date it was 
generally conceded that the jurisdiction was with the Executive. 

Volume 4, page 71, Memoirs, John Quincy Adams, we find that 
that statesman lias made the following entry with reference to a 
conversation with Mr. Monroe: 

The President told me that last evening a member of the Senate came to 
him and asked him if at the Cabinet meetings before the commencement of 
the session of Congress the determination was taken not to acknowledge the 
Government of Buenos Ayres, professedly to the end that Congress might 
take the lead in this measure. And this was now inquired obviously with a 
view to justify the present conduct of Mr. Clay. The President answered 
that at that time the questions were proposed whether the Executive was 
competent to acknowledge the independence of Buenos Ayres, and, if so, 
whether it was expedient; that it had been concluded the Executive was 
competent; but that it was not expedient to take the step without the cer¬ 
tainty of being supported in it by the public opinion, which, if decidedly favor¬ 
able to the measure, would be manifested by measures of Congress. Mr. Mon¬ 
roe added, if Mr. Clay had taken the ground that the Executive had gone as 
far as he could go with propriety toward the acknowledgment of the South 
Americans, that he was well disposed to go further, if such were the feeling 
of the nation and of Congress, and had made his motion with that view, to 
ascertain the real sentiments of Congress, it might have been in perfect har¬ 
mony with the Executive. But between that and the angry, acrimonious 
course pursued by Mr. Clay there was a wide difference. 

This plainly shows that Mr. Monroe himself believed that the 
power to recognize is in the President, but he was not averse to 
consulting those whose right to nullify his acts he denied. But 
he made no intimation that there was any question as to the ex¬ 
clusiveness of Presidential jurisdiction. 

He spoke also, as shown by these quoted remarks, of public 
opinion. He was naturally anxious to discover the sentiments of 
the people, though he did not design sacrificing his constitutional 
power or abdicating any of his constitutional privileges, whatever 
might be the opinion either of Congress or of the peox>le. He rec¬ 
ognized unquestionably that as the servant of the people it was 
his duty to maintain the laws which had been provided for his 
guidance, and which lie must follow until the people in their sov¬ 
ereign cajiacity established a different system. 

On page 204 of the same memoirs we find the following: 

My draft of a dispatch to B. Bush was read. They were all startled at the 
paragraph announcing it as the President’s intention at no remote period to 
recognize the Government of Buenos Ayres. 

2313 


27 


The whole conversation, everything that was said—and the re¬ 
marks are set forth at some length in his memoirs—goes to show 
that the people, that the Congress, all interested, were anticipating 
the decision of the Executive upon the matter then pending. That 
Mr. Monroe asserted the jurisdiction in himself, and that he in¬ 
tended to see that it remained where the Constitution had placed 
it, no one can deny. 

The following significant expressions appear in the same diary, 
on page 205: 

Mr. Crawford now said that if the acknowledgment was to take place, he 
shoxild prefer making it in another form, not by granting an “ exequatur” to 
a consul, but by sending a minister there; because the Senate must then act 
upon the nomination, which would give their sanction to the measure. Mr. 
Wirt added that the House of Representatives must also concur by assenting 
to an act of appropriation. And the President, laughing, said that as those 
bodies had the power of impeachment over us, it would be quite convenient 
to have them thus pledged beforehand. 

I said my impressions were altogether different. I would make the ac¬ 
knowledgment as simple and unostentatious as possible, with as little change 
in the actual state of things as could be. I thought it not consistent with our 
national dignity to be the first in sending a minister to a new power. It had 
not been done by any European power to ourselves. If an exchange of min¬ 
isters was to take place, the first should come from them. As to impeach¬ 
ment, I was willing to take my share of risk of it for this measure whenever 
the Executive should deem it proper. And instead of admitting the Senate 
or House of Representatives to any share in the act of recognition, I would 
expressly avoid that form of doing it which would require the concurrence 
of those bodies. It was, I had no doubt, by our Constitution an act of the 
Executive authority. General Washington had exercised it in recognizing 
the French Republic by the reception of Mr. Genet. Mr. Madison had exer¬ 
cised it by declining for several years to receive, and by finally receiving, Mr. 
Onis; and in this instance I thought the Executive ought carefully to pre¬ 
serve entire the authority given him by the Constitution, and not weaken it 
by setting the precedent of making either House of Congress a party to an 
act which it was his exclusive right and duty to perform. 

Crawford said ho did not think there was anything in the objection to 
sending a minister on the score of national dignity, and that there was a dif¬ 
ference between the recognition of a change of government in a nation al¬ 
ready acknowledged as sovereign and the recognition of a new nation itself. 
He did not however deny, but admitted, that the recognition was strictly 
within the powers of the Executive alone, and I did not press the discussion 
further. 

Therefore not only did the Secretary of State in that discussion, 
and not only did other members of the Cabinet concede and hold 
the existence of this exclusive power in the President, but the 
President himself, while believing it to be wise to obtain the ap¬ 
proval of Congress, so believed only because of the Congressional 
power to appropriate and for the reason that he wished that mat¬ 
ters should proceed without friction. No intimation is contained 
at any place in this discussion or in the detailed report of what 
occurred at that time to warrant any doubt that Mr. Monroe him¬ 
self held the same views now entertained by Mr. Cleveland and 
Mr. Olney. 

Mr. HOAR. Will the Senator from California allow me? 

Mr. WHITE. I yield to the Senator from Massachusetts. 

Mr. HOAR. I should like to ask the Senator from California 
if he does not agree that a declaration of war against a foreign 
district or country is a recognition of it as a sovereign power? 

Mr. WHITE. Such a declaration is undoubtedly an assumption 
of the existence of a power against which war could be declared. 
This i3 certainly true. 

Mr. HOAR. Suppose, for instance, Cuba had practically main¬ 
tained her independence of Spain, Spain being utterly unable to 
help herself, and Cuba had committed hostile acts upon our corn- 
2613 


28 


merce, is not the power in Congress to declare war with Cuba, as 
the power is in Congress to regulate commerce with Cuba, under 
such circumstances, with all the incidents that follow? 

Mr. WHITE. Congress may declare war against a nation or it 
can regulate commerce with a nation. An act of Congress declar¬ 
ing war does not by its terms create independence or declare that 
status. The declaration assumes the status, however. 

Mr. HOAR. So we could not have a treaty of peace? 

Mr. WHITE. Well, we could have a treaty; I concede that. 
A treaty is initiated by the Executive, and the Senate advises and 
consents. 

Mr. HOAR. The Senator will pardon me a moment. I do not 
want to interfere with his argument. I put this question in sup¬ 
port of the conclusion to which I had myself arrived, which is, I 
think, the one which was in the thought of President Jackson, 
and perhaps would reconcile every expression which is to be 
found in our history. 

It is very clear that this is an incident, however great or im¬ 
portant it is. The power in the Executive is clearly incident to 
the power not merely to send ambassadors, but to invite the send¬ 
ing of ambassadors from abroad, as the Senator has so well shown, 
and I agree with the Senator that it is a power which necessarily 
must continue all the year round, and may be exercised on an 
hour’s notice sometimes, and it can not be exercised by Congress 
for that reason. But it seems to me, with great respect, that while 
it is incident to the treaty-making power of which the President 
is a part, as the Senator said, it is also an incident of certain con¬ 
stitutional powers of Congress. . Yet these powers never will be 
brought into conflict, although they may reside to a limited ex¬ 
tent in both. But the question we are dealing with is not whether 
Congress may have it as incident to the power to regulate com¬ 
merce. not whether Congress may have it as incident to the power 
to declare war, not whether Congress may have it as incident to 
its power of legislation over the conduct of American citizens, not 
as an incident or consequence; our question now is, Does it rest 
in Congress primarily and originally before any of these other con¬ 
stitutional things are done? 

Now, I agree with the Senator that the very necessity of the 
case makes it an executive power, and an executive power alone, 
where nothing is to be done but recognition. So this is a very 
grave matter that we should not concede unless the Constitution 
requires it, that the power of recognizing a foreign country may 
sometimes be a necessary incident to some constitutional legisla¬ 
tive power of Congress; and I hope that nothing will occur in 
this discussion on either side which will amount to a limitation 
or abridgment of that power. The Senator will pardon me for 
the interruption. 

Mr. WHITE. It is true that the question to which I am imme¬ 
diately addressing myself is the attempt absolutely and directly 
by a joint resolution to recognize the independence of another 
government. 

Mr. HOAR. As incident to nothing? 

Mr. WHITE. Yes, sir; predicated upon nothing incidentally. 
The resolution directly deals with the subject. It is confined to 
that specific topic alone. I am not here to enter into a discussion 
as to the effect of indirect legislation which Congress may per¬ 
haps at some time see fit to enact in conflict with Executive view. 

2613 


29 


It is always dangerous to seek the discussion of irrelevant sub¬ 
jects, or to attempt the adoption of rules to govern cases not yet 
presented. 

As far as a declaration of war or a treaty of commerce are con¬ 
cerned, both presuppose the existence of nationality upon which 
the declaration or legislation may be operative, but whether in 
the exercise of our constitutional power of passing a bill regulat¬ 
ing commerce., concurred in by the Executive, a peculiar collateral 
consequence may result, I do not propose at this hour to elabo¬ 
rately consider. Such a course would be foreign to the purpose I 
have at hand. ^ I am endeavoring to show that, as far as the at¬ 
tempt to directly recognize a revolutionary organization goes, it 
is not within our sphere. Whether indirect action of Congress 
might result in the assumption of another national existence, it is 
not certain that such assumption could absolutely create a nation. 
But this is speculative. I do not believe that any such conflict of 
authority or peculiar combination of circumstances will ever be 
manifested. I could add that we might readily hold commercial 
relations with communities not constituting a nation. This Gov¬ 
ernment has continued moving in the present channel for many 
years without, I think, any substantial deviation in practice from 
the course to which I have alluded. 

I do not feel prepared to change our procedure now. The cita¬ 
tions which I made from Mr. Adams’s account of Mr. Monroe’s 
statement are interesting, and are certainly sufficient to acquit 
the Executive or the Secretary of State from the charge of assert¬ 
ing anything new. The specific proposition contended for by the 
present Administration is that in the case of Cuba Congress has 
not the power directly to declare independence, or even belliger¬ 
ency. I have stated that I believe that contention to be well 
founded, and I have sought to fortify my opinion by referring to 
precedent and to principle. 

Mr. President, it is clear that the Constitution does not make 
it the duty of Congress, nor does it give to either House, the au¬ 
thority to receive ambassadors or ministers. This function is 
conferred upon the President only. It has been suggested that 
this delegation of authority amounts to nothing more than the 
enjoining of a duty to extend proper courtesies to diplomatic offi¬ 
cers coming from abroad. With due respect, it appears to me 
that this argument has nothing in reason to sustain it. Can we 
afford to urge that as important an instrument as the Constitu¬ 
tion, upon which our governmental framework absolutely rests, 
is devoted to any extent or at all to a mere matter of etiquette? 
The duty which the President must perform under the organic 
law with relation to ambassadors and ministers is not merely to 
grasp their hands or to otherwise salute them in the most approved 
method of the day; nor is it exhausted or even exercised by giving 
invitations to receptions or dinners. It means more than this. 
As the Executive is granted the power to receive, so he is accorded 
the right to determine to whom such reception should be vouch¬ 
safed. He receives officially if he believes that the party present¬ 
ing himself is not only individually the sort of a man who ought 
to be received, but he also is bound to determine whether he in 
fact represents a foreign power. 

Necessarily this authority to determine is involved in the dis¬ 
charge of the duty to receive. When a person offering himself at 
the Executive Mansion claims that he is entitled to be received as 
2613 


30 


a minister, the President, from the very nature of the case, ia 
compelled to decide whether liis pretensions are well founded, 
and in doing this he is hound to find on the issue as to whether 
the applicant represents a foreign power. Thus the alleged min¬ 
ister of the Cuban Republic seeks to meet the Executive; Mr. 
Cleveland refuses to receive him, because he declares that the 
minister does not represent a foreign power. Congress can not 
dictate to the President as to who he shall receive, for the simple 
reason that the duty to receive being constitutionally delegated 
to him, he must determine for himself whether a case has arisen 
calling for the exercise of that power. It is the duty of Congress 
to pass laws to govern the country, but it is within its sole discre¬ 
tion to enact or not to enact. If we refuse to appropriate a dollar 
for public purposes we might be and would be derelict, but no 
court could mandamus us, because Congress judges for itself as 
to whether a case has arisen calling for the exercise of its func¬ 
tions. 

The President may act badly; indeed, his conduct may justify 
impeachment. So Congress may behave in an outrageous man¬ 
ner, and the people may be without any further remedy than that 
which is expressed at the polls. No scheme of government ever 
devised can insure ability and honesty upon the part of those in¬ 
trusted with power, and there is no individual or officer to whom 
authority has been delegated w T ho may not violate his obligations 
and work evil. But the accomplishment of such regrettable results 
is no argument against jurisdiction. It must be remembered that 
the existence of jurisdiction may well mean the power to do not 
only that which is right, but also that which is wrong. 

Where is there a word in the organic law indicating preference 
for Congressional jurisdiction? The legislative limitations therein 
prescribed were suggested by ages of experience. Danger lurks 
in excited multitudes and appears in the consequences of uprisings 
and insurrections as well as in the remorseless mandates of kingly 
power. The fathers sought to guard against extremes. The dele¬ 
gation of authority to the Executive was designed to confer exclu¬ 
sive jurisdiction to the extent indicated. Concurrent jurisdiction 
in such a matter as this would be confusing and lead to perilous 
disputation. The power thus accorded is not and never will be 
subject to appeal. Congress must pass a bill over the Presidential 
veto, because the Constitution so declares; but Congress can not, 
by bill, modify or abrogate the Executive authority with reference 
to foreign relations, and especially with regard to receiving am¬ 
bassadors and ministers. So also of the legislative and executive 
jurisdictions. Were it otherwise, the whole scheme would be a 
failure. If the legislative department is preferred, this means 
that the executive and judicial departments exist only in subordi¬ 
nation to Congress, whose edicts are in fact supreme. This posi¬ 
tion is not only violative of the words of the Constitution, but in 
conflict with the often expressed intentions of the fathers. It has 
no support in our history. It is revolutionary, and destructive of 
that independence without which the Presidential office can never 
be properly exercised. 

SOME OF THE DIFFICULTIES OF THE CONTRARY POSITION. 

It is intimated that the President has the power to recognize, 
but it is said that this is only a conditional grant. It is limited in 
some mode. It exists now, and it may not exist to-morrow. This 
2G13 


31 


position I repudiate, for I find no direct grant to Congress justify¬ 
ing such a conclusion; nor does it appear to me that such author¬ 
ity is granted anywhere by implication, or is the necessary attend¬ 
ant of any authority specifically delegated. If the President 
recognizes the belligerency or independence of the Cuban Republic, 
can Congress repudiate such recognition? I take it that this is 
not possible. If the Presidential recognition of belligerency is 
valid in any case, in what case is it invalid? And. if the President 
has authority to absolutely recognize independence in any case, is 
not that authority the result of discretion conferred upon him by 
the Constitution? And such discretion involves the ability to re¬ 
fuse as well as to grant, and if it is not competent for Congress to 
nullify Presidential recognition of belligerency or independence, 
can Congress render nugatory the decision of the President deny¬ 
ing such recognition? I think that I have already shown that the 
framers of the Constitution were not engaged in the business of 
guarding Congress against the President, but that they felt the 
necessity of so organizing the Houses that they could not subor¬ 
dinate Presidential jurisdiction within allotted lines save in one 
mode, to wit, impeachment. 

The plenary authority exercised by the President in foreign 
affairs is exemplified to some extent not only in receiving minis¬ 
ters, but even in providing for the exercise by foreign consuls 
of authority within the United States. 

When the British consul at Charleston, at the beginning of the 
late civil war, acted in a manner contrary to the wishes of Mr. 
Lincoln and his Cabinet, the exequatur was revoked and Mr. 
Bunch's powers terminated. No consultation was had with Con¬ 
gress upon this subject. It is discretionary with the President 
to refuse an exequatur, although, as Mr. Blaine declared in his 
letter to Mr. Morgan, May 31,1881 (1 Whar. Int. Law, page 765), 
the exercise of that undoubted right is an extreme one, rarely 
resorted to here. 

Instances of the dismissal of ministers are numerous. We re¬ 
member very clearly the action of Mr. Cleveland in demanding 
the recall of Minister West, owing to his correspondence with an 
alleged British subject called, for the time being, Murchison. No 
power was conferred by Congress upon the President, but he, 
having the right to control the matter, exercised his prerogative 
at his discretion. 

In Schuyler’s American Diplomacy, page 136,1 find the following: 

It may be mentioned here that our Government has never been slow to use 
its right in asking for the recall of, or of sending away, a foreign minister who 
becomes obnoxious. The recall of Mr. Genet, the French minister, was asked 
in 1793; that of Mr. Jackson, the British minister, in 1809; that of Mr. Poussin, 
the French minister, in 1849; Mr. Crampton, the British minister, was given 
his passports in 1856; and intercourse ceased with Mr. Catacazy, the Russian 
minister, in 1871. 

In all those cases the act was the act of the Executive; it was 
the result of Executive discretion; there was no participancy by 
the legislative department, and none claimed. 

If Congress possesses the pow T er to settle the question of bel¬ 
ligerency or independence, it is clear that all sources of material 
information ought to be open to investigation and examination. 

I beg leave to refer to remarks made by me on a former occa¬ 
sion touching this question: 

There is another ground which appears to me very strong in support of 
the contention that the recognition power is lodged in the Executive. Thera 

2313 


32 


is before the Senate a document which was read by the Senator from Ala¬ 
bama, and which I deem quite important. I refer to House Document 224 of 
the present session. I read a few lines for purposes of illustration: 

“No. 2699.] Consulate-General or the United States, 

“ Habana , January 7, 1896. 

“ Sir: With reference to the proclamation of the Captain-General of the 
2d instant declaring a state of war to exist in the provinces of Habana and 
Pinar del Rio, copy and translation of which accompanied my dispatch No. 
2695 of the 4th instant 

At this point I find a note stating that the proclamation mentioned is not 
printed. From this I conclude that the omitted paper has not been revealed 
to Congress. No one appears to controvert this supposition. When the 
House adopted the resolution calling for this correspondence it did so in the 
following phraseology: 

“ Resolved , That the Secretary of State be directed to communicate to the 
House of Representatives, if not inconsistent with the public interests, copies 
of all correspondence relating to affairs in Cuba since February last.” 

The House passed the usual resolution in the regular form which custom 
authorizes. Manifestly information has been withheld—no doubt properly. 
Time out of mind, if I may use that expression with reference to this verjr 
modern Government, it has been the custom to withhold information, the 
disclosure of which the Executive deems incompatible with public interest. 
The document thus legitimately withheld may contain essential and con¬ 
trolling facts upon this subject. That it is important would seem to follow 
to some extent from the very circumstance that it is retained. Has the 
Executive the right to thus deny information? Our Chief Magistrates have 
always done so, pursuant to unchallenged custom and in compliance with 
recognized usage, evidenced by many hundred resolutions calling upon the 
Executive for diplomatic information. The President is not directed; he is 
merely requested, and always with the qualification which I have noted. 
The Executive right to withhold delicate diplomatic correspondence is inci¬ 
dental to the Presidential office. Can it be that the Constitution has placed 
upon Congress the burden of deciding and the duty to determine issues con¬ 
cerning belligerent or other relations to foreign powers and has not at the 
same time compelled the President to give us everything within his knowl¬ 
edge? Can it be that we are to pass upon a part of the case and not upon 
the whole? Can it be that under the law we are deprived of material evi¬ 
dence and yet are expected to render final and determinative judgment upon 
an imperfect record—a fraction of the aggregate proof? I say not. The 
President has before him all information. Ho reviews a complete history. 
Plainly, he is in a better condition to judge of the true state of affairs than 
are we. He has the means to secure ail relevant information. 

Having in charge the diplomatic relations of the Government, he is, or 
should be, better advised than the Senate or the House of Representatives, 
or both. 

It was early settled that the Executive could not he compelled 
to surrender up to both Houses of Congress information which 
that officer deemed to be of such a character as to render it inad¬ 
visable to make a disclosure. 

When President Washington sent in the proposed treaty with 
Great Britain, a question arose as to whether the President had 
any right to negotiate a treaty of commerce (2 Marshall’s Wash¬ 
ington, page 377). Mr. Livingstone offered a resolution in the 
House requesting the President to furnish a copy of the instruc¬ 
tions to the minister of the United States who negotiated the treaty 
with Great Britain. Mr. Madison proposed to amend so as to 
except such papers as, in the judgment of the President, it might 
be inconsistent with the interests of the United States at this time 
to disclose (id., page 378). This proposition was rejected, and the 
resolution offered by Mr. Livingstone was passed by a vote of 62 
to 37. Afterwards the President communicated to the House his 
refusal, and in concluding it he said: 

As it is essential to the due administration of the Government that the 
boundaries fixed by the Constitution between the different departments 
should be preserved, a just regard to the Constitution and to the duty of my 
office under all the circumstances of this case forbid a compliance with your 
recmest. (Id., 381.) 

2613 


33 


I can not find that the power of the President to retain infor¬ 
mation the disclosure of which he deems incompatible with the 
public interest lias ever been doubted, and the uniform practice 
of Congress admits this power. We do not direct the President 
nor do we seek to compel him to make disclosures against his own 
judgment. On the contrary, the Presidential discretion is in 
terms conceded in every resolution seeking information from the 
State Department which Congress sees fit to pass. 

The question of the recognition of belligerency or independence 
should be determined upon a full view of the entire situation. 
Every fact bearing upon it ought to be before that department 
charged with the responsibility of acting. It is manifest that the 
most important documents, the most direct and convincing cir¬ 
cumstances, may be contained in official communications contain¬ 
ing matter which ought not to be made public. Indeed, it is safe 
to say that the most important information is doubtless encoun¬ 
tered in such documents. The very gravity of the disclosures 
therein contained makes it inadvisable to surrender them. So 
that we who claim the right to pass upon this issue must concede 
that all avenues of information are not open to us—many are open 
to us, no doubt, but all are not open to us—and that the most 
material part of the case is withheld in harmony with the Consti¬ 
tution, which, it is claimed, gives us the power to overrule the 
Executive, notwithstanding his superior facilities for knowing the 
facts, and his power to withhold information officially received 
by him, and which appears to him (perhaps correctly) properly 
determinative of the entire matter. If it be true that the Consti¬ 
tution has made it our duty to pass upon the diplomatic questions 
involved and has given to the President means of obtaining infor¬ 
mation not granted to any other department, and has likewise left 
the disclosure of such knowledge wholly discretionary with him, 
the system is radically defective. It is not likely that the Presi¬ 
dent requires more data than the Senate or the Congress, and to 
require us to act without all the evidence is to compel a judgment 
in the absence of the most material evidence. 

I have already referred to the opinion of Mr. Monroe on this 
subject regarding Executive power. I wish to attract attention to 
the circumstance that Mr. Monroe deemed it advisable to send 
commissioners to the South American states for the purpose of 
enabling him to determine whether he should recognize the inde¬ 
pendence of the new governments. These commissioners he, as 
Chief Executive, sent to the South American republics that he 
might obtain information to justify him in reaching a conclusion 
as to whether he ought to accord a declaration of independence or 
not. In many instances subsequent Administrations found it de¬ 
sirable to send emissaries abroad for the purpose of determining 
similar issues without consulting Congress. 

Agents or messengers have been sent not as diplomats or min¬ 
isters, and therefore without consultation with the Senate, the 
branch of Congress solely authorized to confirm envoys and plen¬ 
ipotentiaries; but these appointments have been justified, not only 
in many of the cases cited but in many others, because of the fact 
that they were the mere agents of the Executive, his messengers 
sent abroad to bring him word as to affairs concerning which he 
needed information in order to duly execute a constitutional 
power, to wit, the recognition of a new government. 

The case of Mr. Trist, 'who was sent as a confidential agent to 
2613—3 


34 


Mexico (and the object and purpose of his mission appears, 2 Whar¬ 
ton on International Law, section 154), is an exemplification of the 
authority of the President in this regard. The appointment of 
Archbishop Hughes and Bishop Mclllraine, Mr. Everett, Mr. Win- 
throp, and Mr."j. B. Kennedy as confidential agents with refer¬ 
ence to matters connected with the recognition of belligerency 
during our domestic strife contributes an interesting chapter to 
the exercise of authority by the President without consulting the 
Senate and all within the recognized diplomatic limits. 

The case often referred to here—so frequently that it is not nec¬ 
essary for me to discuss it—of Mr. Mann and the Hungarian con¬ 
troversy is in point. Mr. Webster's elaborate presentation of the 
subject and the treatment it received at the hands of Mr. Everett 
are all in the same line. I will not go over them, for they have 
been dwelt upon often and are familiar to the Senate and to the 
country. 

When we speak of the advisability of reposing power in one de¬ 
partment of the Government in preference to another, our argu¬ 
ment is only of value in so far as it tends to illustrate the motives 
and objects and ends sought to be accomplished by the framers of 
the Constitution, and in an ambiguous case, if it is found that 
the lodgment of power in one particular department would be 
manifestly inadvisable, and if the language is obscure or the con¬ 
struction in doubt, perhaps we may be aided to some extent when 
we consider it on principle and in the light of the practical inter¬ 
pretation of experience. 

THE NECESSITY OE SECItECY IN DIPLOMATIC AFFAIRS. / 

It is notorious that it is practically impossible to preserve secrecy 
as to matters occurring in the Senate. It frequently happens that 
debates taking place in supposed executive session are publicly 
reported; and while it is usually true that the reports made and 
the deductions drawn are not altogether correct, and there are 
many omissions of vital and essential features, yet it is also a well- 
known fact that whenever a sensational proposition or anything 
calculated to excite public curiosity or interest is announced in 
executive session it finds its way to the public. The delicacy of 
foreign negotiations, the ease with which controversies nearly 
settled may be impeded by ill-advised expressions or premature 
disclosure, is too plain to need comment. 

Nor is this all. We know that the Senate is not now and never 
has been and never can bo os reliable a place for the carrying on 
of those negotiations which are frequently necessary in the man¬ 
agement of international disputes, and the same may be said with 
more emphasis with reference to Congress. Thus, within a year 
perhaps, we have heard remarks made with reference to foreign 
governments with which we were at peace. We have heard a 
friendly nation called “a toothless wolf,’ 5 “a Gila monster, 55 “a 
nation whose symbol of power is a monkey and an organ grinder,” 
and kindred phrases in a body several of whose members now 
claim almost exclusive diplomatic authority. Our ability to 
excite a foreign government, our ability to involve the Govern¬ 
ment of the United States in difficulty, certainly will not be seri¬ 
ously challenged. Wo are not as successful in procuring the 
spreading of the wings of peace over the earth. Mr. Sanguily 
may well doubt the propriety of our interference with his case, 
which is now being energetically pressed by our State Department. 

£613 


While intemperate remarks are delivered here, persons in whom 
we have an interest are being tried and sentenced for violations 
of municipal law, and our State Department is endeavoring to 
extricate, by diplomacy, many in whom we are concerned who 
have, by reason of their desire to liberate another people, placed 
themselves within the reach of the criminal processes of a friendly 
power. It is believed that utterances made upon this floor, which 
could not have any effect for good, have made it more difficult for 
the Executive to procure liberation of individuals in Cuba who 
have been in the greatest peril. 

The Constitution conferred upon the Senate and the House juris¬ 
diction as to treaties, and also in the matter of certain appoint¬ 
ments, and that it was the part of wisdom so to do is, I believe, 
obvious. Whether we consider a treaty as a contract, in accord¬ 
ance with the views of Mr. Frelinghuy sen and others, or whether 
we regard it as in the nature of legislation (and the Constitution 
declares a treaty to be the supreme law of the land), it is proper 
for the lawmaking power to be consulted as to subjects which 
not only affect foreign relations but often directly interfere with 
the acts of Congress and the exercise of municipal powers by the 
several States. In the making of a contract the ability and char¬ 
acter of the Senate has always been of great assistance, and I doubt 
whether there has ever been a topic of international concern sub¬ 
mitted in the form of a treaty where much light and many wise 
suggestions have not emanated from this body. Legislation can 
not be conducted by the Executive alone, and upon the same prin¬ 
ciple it may be said that no treaty ought to be made without the 
cooperation of the Senate, and the framers of the Constitution, in 
making it impossible to perfect such an instrument in the absence 
of two-thirds ratification here, undoubtedly considered that such 
a strong indorsement would atone for the absence of the other 
branch of Congress. Were the concurrence of the House neces¬ 
sary, there would be much friction, many misunderstandings, and 
numerous contentions with nations with whom we had been pre¬ 
viously on terms of amity. But the justification of the policy to 
be met with in the matter of ratifying treaties is found in the fact 
that we there deal not only with foreign governments regarding 
purely international matters, but with propositions affecting legis¬ 
lation, and which must, as I have already remarked, have more or 
less effect upon the domestic concerns of the several States. 

The difficulties unavoidable in treating diplomatic questions in 
the Senate must be evident to all. Not only are imprudent re¬ 
marks indulged in because of impulses natural to momentary 
excitement, induced occasionally by ill-founded newspaper utter¬ 
ances, mistaken reports—the result of journalistic enterprise and 
competition—but Senators are in the habit of giving their opin¬ 
ions through resolutions of various kinds, often accompanied by 
speeches exceedingly demonstrative and very seldom involving 
the actual opinion of a majority of the Chamber or even of a com¬ 
mittee. 

Such resolutions, after being discussed at the time of their pres¬ 
entation, are sent to committee and are perhaps never reported 
back, or if reported are in a modified form; and when the matter 
is investigated it is perhaps discovered that the circumstances are 
not such as to warrant the belligerent remarks which had been 
made at the time of introduction. 

When Mr. Cleveland sent in his Venezuelan message there was 
2613 


considerable excitement. Senators for the first time during my 
brief incumbency here expressed their appreciation by applause 
upon the floor. A bill was speedily passed placing the necessary 
funds in the hands of the Executive to enable him to proceed 
with the work outlined in the message. Resolutions of varied 
form were introduced, and finally the Committee on Foreign Re¬ 
lations, through the distinguished Senator from Minnesota [Mr. 
Davis] who sits near me, presented a concurrent resolution of 
considerable length, purporting to define the Monroe doctrine 
and to extend its application much beyond the lines laid down by 
Mr. Cleveland. 

Afterwards the same distinguished Senator delivered an address 
in support of his report. He took very advanced ground. The 
resolution is still upon our Calendar, and no vote will ever be had 
upon it. I intend to refer to several other reports of the Commit¬ 
tee on Foreign Relations preceding the remarkable Sanguily resolu¬ 
tion now before us, and shall endeavor to show that the Secretarv of 
State has done his duty under the law ably and effectively. But 1 
will now yield to the chairman of the Committee on Appropriations 
[Mr. Allison] , and if the appropriation bills are again displaced I 
will continue my argument. At all events, I will not, under pre¬ 
vailing circumstances, proceed further at this late hour. 

****** * 


Friday , February 26, 1807. 

JULIO SANGUILY. 

It having been ascertained that Julio Sanguily had been par¬ 
doned prior to the consideration of the resolution on that subject 
referred to in the foregoing remarks, the following proceedings 
were had in the Senate: 

The PRESIDING OFFICER. The hour of 1 o'clock having 
arrived, it is the duty of the Chair to lay before the Senate the 
unfinished business, which will be suited. 

The Secretary. A joint resolution (S. R. 207) demanding the 
release of Julio Sanguily, an American citizen imprisoned in 
Cuba. 

Mr. PETTIGREW. I ask that the unfinished business be laid 
aside, and that we proceed with the consideration of the Indian 
appropriation bill. 

Mr. BERRY. Temporarily, -without prejudice. 

Mr. PETTIGREW. Temporarily, without prejudice, if it is 
desired. 

Mr. MORGAN. It was the understanding, by unanimous con¬ 
sent yesterday, that the joint resolution was "to come up at 1 
o’clock to-day. 

Mr. PETTIGREW. Then I move that it be laid aside. 

Mr. MORGAN. The Senator can not do that without violating 
the unanimous-consent agreement. 

Mr. WHITE. I am entitled to the floor on the joint resolution, 
I believe. 

Mr. PETTIGREW. I am not aware of any such unanimous- 
consent agreement. I should like to have it read. 

Mr. WHITE. I do not object to the request of the Senator 
from South Dakota. 

Mr. PETTIGREW. I do not intend to violate a consent agree¬ 
ment. 

2613 


37 

Mr. LINDSAY. There was no consent agreement about it that 
I understand. 

Mr. BERRY. Is the joint resolution to he temporarily laid 
aside? The Senator from California who has the floor has no ob¬ 
jection to that until we can get through with the bill that is now 
before the Senate. I appeal to the Senator from Alabama not to 
urge the joint resolution at this time. 

Mr. FRYE. I hope the Senator from Alabama will consent to 
allow the joint resolution to go to the Calendar. The telegraphic 
communications received to-day, undoubtedly reliable, show that 
Sanguily, by advice of his attorney, has, under duress of a two- 
years’ imprisonment, consented to the judgment and the sentence 
by withdrawing the appeal; that the Queen Regent has signed the 
pardon, and that Sanguily is free. 

Now, while I regard that as unfortunate in many respects, it 
seems to me it leaves the joint resolution without any necessity of 
further consideration. I do not believe, and never did, in wasting 
powder simply for the purpose of making a noise. 

I shall vote, under these circumstances, to proceed wfltli the ap¬ 
propriation bill. I do not believe anyone doubts my friendliness 
to Cuba. Every pulsation of my heart is with the patriots who 
are fighting for liberty, and I have an utter detestation of the 
brutalities of Spain; but I do not believe there is any further 
necessity of considering the joint resolution. I hope it will be 
permitted to go to the Calendar. 

Mr. MORGAN. I am acting here- 

Mr. CALL. I ask the Senator from Alabama to allow me to 
say- 

Mr. MORG AN. Who has the floor? 

The PRESIDING OFFICER. The Senator from California 
[Mr. White] has the floor. Does he yield to the Senator from 
Alabama? 

Mr. PETTIGREW. I move to take up the Indian appropriation 

bill. 

Mr. WHITE. I am entitled to the floor; but I have stated that 
I have no objection to yielding the floor; but I should like to say 
a word. However, I will yield temporarily to the Senator from 
Alabama. I do not wish to incommode the Senator in charge of 
the appropriation bill, and will not do it; but, having the floor, I 
think I am entitled to the courtesy of a request before I yield it. 
I may be mistaken. 

The PRESIDING OFFICER. The Senator from California 
yields to the Senator from Alabama. 

GEORGE WASHINGTON AGUIRRE. 

Mr. MORGAN. I am very thankful to the Senator from Cali¬ 
fornia for his courtesy. He has the floor on the joint resolution 
which is before the Senate, and it can be disposed of if Senators 
will only contain themselves a little while in a legitimate and in 
a decent way. I rose under the privilege which -was accorded to 
me by the Senator from California to ask unanimous consent for 
the adoption of a resolution which I will read: 

Resolved , That the President is requested, if it is not, in his opinion, incom¬ 
patible with the public interests, to communicate to the Senate such infor¬ 
mation as has been furnished to or obtained by the Executive or the Depart¬ 
ment of State relating to the arrest and imprisonment of and any proceed¬ 
ings against George Washington Aguirre, a youth of 19 years of age, and a 

2G13 




38 


citizen of the United States, who, to obtain the benefit of a general amnesty 
proclaimed by the Captain-General of Cuba, surrendered to the Spanish au¬ 
thorities in Cuba on the 4th day of July, 1896. 

You will observe, Mr. President, that there is quite an associa¬ 
tion of dates there that have a great hold upon the affections of 
the American people. He seems to have surrendered on the 4th 
day of July, 1896, and his name his George Washington Aguirre. 
Pie is 19 years of age, and he surrendered under a proclamation of 
amnesty which invited him to come in and surrender. Doubtless 
he is one of our American boys, of Cuban origin, who has gone 
down there to take a hand in that scrimmage, as I am afraid a 
good many of them are inclined to do. For the benefit of the Sen¬ 
ator from Massachusetts [Mr. Hoar] , if he doubts the citizenship 
of this man (he seems to turn his head in this way as if he wanted 
to make a point of citizenship,as he made yesterday), I will call 
his attention to another name toy reading the following letter: 

New York City, February 2 U , 1 S 97 . 

My Dear Sir: I desire to call your attention to the case of George Wash¬ 
ington Aguirre, an American citizen, 19 years of age, and a prisoner in the 
Cubana fortress in Habana since the 4th day of July last. He surrendered 
under the amnesty proclamation of General Weyler promising freedom to 
those who gave themselves up. He was promptly ordered to be court- 
martialed, but by the interference of General Lee this was changed to an 
order for a civil trial. This civil trial has not come yet and likely never will, 
without the aid of our Government. The tortures of this boy threaten his 
life. I make this statement to you upon respectable authority, who have 
requested this letter. I have no personal knowledge of the facts. The 
authority of this nation should correct such wrongs, and speedily. His 
release should be demanded at once. 

I am, very truly, yours, ETHAN ALLEN. 

Hon. John T. Morgan. 

Now, there is another name connected historically with the 
United States, and I suppose I can venture to assume here in pre¬ 
senting this resolution that this boy, whose name is George 
Washington Aguirre, and who is only 19 years of age, is a citizen 
of the United States, because Ethan Allen has said so. That is 
as far as I can go upon it. Now, acting upon that predicate, I 
want to ask the unanimous consent of the Senate for the adoption 
of this resolution for information from the President. 

Mr. HOAR. What was it the Senator called my attention to? 
I came into the Chamber as he finished the reading. 

Mr. MORGAN. I called attention to the fact that this man 
was evidently of Cuban birth, born of a Cuban family, because 
his name is Aguirre. I supposed the Senator would be ready to 
raise the question of naturalization on him, and I wanted to say 
that I had no further testimony to offer on the subject than the 
testimony of Ethan Allen. 

Mr. HOAR. The Ethan Allen of the Revolution? 

Mr. MORGAN. His grandson. 

Mr. PLATT. He is president of the Cuban junta of New York. 

Mr. MORGAN. He is a grandson of Ethan Allen of the Revolu¬ 
tion and is very apt to be president of a revolutionary junta, or 
whatever you may call it. 

Mr. HOAR. I thought the Senator said something about the 
case that was up yesterday as I came in. 

Mr. MORGAN. No; I was going to get to that after a little. 
I ask for the adoption of the resolution, Mr. President. 

Mr. FRYE. It is only a resolution of inquiry. 

Mr. WHITE. If there be no objection and no discussion, I will 
2613 


I 


39 


yield for that purpose only. I wish to make a very limited number 
of observations, which will not consume five minutes. 

Mr. MORGAN. Of course one objection will carry it over. 

The PRESIDING OFFICER. The resolution will be read at 
the desk for information. 

The Secretary read the resolution, as follows: 

Resolved , That the President is requested, if it is not in his opinion incom¬ 
patible with the public interests, to communicate to the Senate such informa¬ 
tion as has been furnished to or obtained by the Executive or the Department 
of State relating to the arrest and imprisonment of and any proceedings 
against George Washington Aguirre, a youth of 19 years of age, and a citizen 
of the United States, who, to obtain the benefit of a general amnesty pro¬ 
claimed by the Captain-General of Cuba, surrendered to the Spanish authori¬ 
ties in Cuba on the 4th day of July, 1898. 

Mr. HOAR. It alleges certain facts. 

Mr. GRAY. I rise to say a word and to ask a question. 

The PRESIDING OFFICER. Does the Senator from Cali¬ 
fornia yield for the purpose? 

Mr. WHITE. I can not yield for a debate. 

Mr. GRAY. It is not debate. I want to ask a question. 

Mr. WHITE. I will yield to the Senator from Delaware. 

Mr. GRAY. I want to appeal to the Senator from Alabama 
that he allow the resolution to be so amended as not to make the 
Senate of the United States responsible for allegation of fact of 
which they can know nothing. It may be all true, but if he 
will put in the word “alleged” before “citizen” and “alleged” 
before “surrendered,” I have no objection to the resolution. 
Otherwise 1 have. 

Mr. MORGAN. I will do that with great cheerfulness, because 
the Senate of the United States has got so far that it is not willing 
to take any responsibility for- 

Mr. Lindsay and Mr. White addressed the Chair. 

The PRESIDING OFFICER. The resolution will be amended 
accordingly. Does the Senator from California yield to the Sena¬ 
tor from Kentucky? 

Mr. WHITE. For a question. 

Mr. LINDSAY. I desire to know whether this able-bodied 
young man, who abandoned the Cuban cause and took advantage 
of the amnesty proclamation, ought not to change his name before 
he asks the Senate of the United States to intervene in his behalf. 
That was a very un-George Washington like act, and I do not 
think he comes here in a position to demand any extraordinary 
consideration at the hands of the Senate. 

Mr. MORGAN. How could he change his name? 

Mr. CALL. Will the Senator allow me to say a word? 

Mr. LINDSAY. I refer to the George Washington part of his 
name. 

The PRESIDING OFFICER. Does the Senator from Cali¬ 
fornia yield to the Senator from Florida? 

Mr. WHITE. I do not want to discriminate, and therefore I 
yield to the Senator from Florida. 

Mr. CALL. Mr. President, I happen to know this young man, 
George Washington Aguirre. He is a native American, born of 
Cuban parents, who became naturalized and lived in this country 
and abroad. He is a young man, animated by a noble, virtuous, 
honorable sentiment of devotion to the country of his forefathers. 
He went to Cuba for the purpose of rendering patriotic aid to the 
cause which he believed in common with all the Cuban people to be 
2613 



40 


a true and honorable effort to obtain independence. lie is quite a 
youth, not yet being 21 years of age. He was here in Washing- 
ton just before his departure for Cuba. I have no doubt from 
these facts, which are within my knowledge, that the statements 
of the letter read by the Senator from Alabama are true. 

Mr. LINDSAY. He did not desert the Cuban cause? _ 

Mr. CALL. I suppose that, like many others, he might have 
been exhausted by the severe privations, to which he was unac¬ 
customed. I know nothing about that; but a youth, compara¬ 
tively of tender years, and not accustomed to great exposure, 
might quite naturally be unable to continue in the service. 

Mr. WHITE. As 4 understand, the resolution in its present 
form is objected to, and therefore I presume it will go over. 

Mr. FRYE. The Senator from Alabama accepted the amend¬ 
ment proposed. 

Mr. WHITE. Then, if it may be voted upon without further 
discussion, I will yield for that purpose. 

The PRESIDING- OFFICER. The Senator from Alabama ac¬ 
cepted the amendment of the Senator from Delaware. Is there 
objection to the present consideration of the resolution? 

Mr. HOAR. Let us hear the amended resolution. 

The PRESIDING OFFICER. The resolution will be read as 
amended. 

The Secretary read the resolution as modified, as follows: 

Resolved , That the President is requested, if not in his opinion incompatible 
with the public interests, to communicate to the Senate such information as 
has been furnished to or obtained by the Executive of the Department of 
State relating to the arrest and imprisonment of and any proceedings 
against George Washington Aguirre, a youth of 19 years of age, and an 
alleged citizen of the United States, who, to obtain the benefit of a general 
amnesty proclaimed by the Captain-General of Cuba, surrendered to tho 
Spanish authorities in Cuba on the 4th day of July, 1896. 

Mr. GRAY. Let it read ‘ 4 is alleged to have surrendered. ” We 
do not know anything about that. 

The PRESIDING OFFICER. The resolution will be so modified. 

Mr. ALLEN. I rise to a parliamentary inquiry. If this reso¬ 
lution is passed, does it displace the Sanguily resolution? 

The PRESIDING OFFICER, it does not, the Chair will state. 

Mr. BERRY and Mr. MILLS. Question. 

The PRESIDING OFFICER. The Chair hears no objection to 
the present consideration of the resolution. Is the Senate ready 
for the question? The question is on agreeing to the resolution of 
the Senator from Alabama as modified. 

The resolution as modified was agreed to. 

Mr. WHITE. Mr. President, I trust that we will find George 
Washington Aguirre to be a duly qualified citizen of some coun¬ 
try. I am not altogether convinced of his innocence, of his impec¬ 
cability, or his statesmanship. I do not consider these proposi¬ 
tions established merely because he bears the name of "George 
Washington. I remember some time ago prosecuting a person, 
who was sent to the penitentiary of my State, whose name was 
Juan de Dios (John of God). He never by word or deed justified 
a claim of honesty. 

I do not intend to discuss questions relating to Julio Sanguily at 
any length to-day for the reasons stated by the Senator from Maine 
[Mr. Frye] . I understand that a resolution will be offered later 
by Mr. Sanguily’s friends in this Chamber protesting against his 
pardon. They seem to be disturbed because he is at liberty. 

2613 


41 


Objections have already been registered to the action of San- 
guily and his counsel in admitting guilt and seeking pardon. It 
is unfortunate that we have not been able to control Mr. Sanguily 
in this respect, and his absence from prison will deprive the world 
of a vast amount of very effective and charming eloquence, accom¬ 
panied, no doubt, by applause of an intelligent and discriminating 
character. It is indeed too bad that Sanguily has been pardoned, 
even though our resolution has not passed and has not been trans¬ 
mitted to the Government of Spain. It is to be hoped, Mr. Presi¬ 
dent. that when the Committee on Foreign Relations brings us a 
case for discussion hereafter it will be a live case, and it is to be 
hoped when a resolution is produced here demanding somebody’s 
surrender that we may not discover in the midst of patriotic 
declamation that the gentleman whose liberty we are seeking to 
obtain has already successfully petitioned for a pardon and ad¬ 
mitted his guilt without consulting us. We can hardly retrieve 
our position by substituting George Washington Aguirre for Don 
Julio Sanguily. [Laughter.] 

I regret that the chairman of the Committee on Foreign Rela¬ 
tions is not in this Chamber. Possibly he may have heard of the 
pardon of Don Julio Sanguily. Were the chairman of the com¬ 
mittee here, I should ask him whether it is true that he had in his 
pocket, or that his committee had in its custody yesterday, when 
this question was being considered, a document showing that Mr. 
Sanguily had petitioned for pardon. Such an assertion has been 
made, but I should like to know whether it is true. I have no 
information upon the subject. If the report be true, the Commit¬ 
tee on Foreign Relations should not have kept the information 
from the Senate. If it was not proper information to be given 
publicly, we might have placed ourselves “in comunicado,” and 
should have closed the doors; in that way we might perhaps have 
constituted ourselves a body of “pacificos.” 

I do not wish to interfere with the appropriation bills which were 
set aside to-day in order that Don Julio Sanguily might be released. 
I will yield to the Senator from South Dakota to make the motion 
of wdiicli he has already given notice. 

****** * 

Mr. LODGE. Mr. President, I had no intention of saving a 
word on this resolution, which I think was properly laid aside and 
the appropriation bill taken up. But, in the absence of the chair¬ 
man of the Committee on Foreign Relations [Mr. Sherman] , the 
Senator from California [Mr. White] saw fit to attack that com¬ 
mittee and revive the debate, and say one or two things which I 
do not propose to leave unanswered, as the chairman of the com¬ 
mittee is not present to say anything in regard to it. 

I am very sorry that the Senator from California should be so 
disturbed about the flow of eloquence in the Senate on the San¬ 
guily resolution, and about the applause in the galleries. I think 
he was unreasonably disturbed. He spoke for four hours himself, 
and no galleries interrupted him. [Laughter.] Also, Mr. Presi¬ 
dent, I want to say that this matter is not to be settled by sneers, 
nor is an answer made in this case by mispronouncing the name 
“Julio,” nor is this case answered by making fun of some man 
whose name happens to be that of the great general and statesman 
•whose birthday we celebrated here a few days ago. This matter 
can not be disposed of by sneers. 

2013 


42 


The case in which a pardon has just been granted is hut one 
case. There is information which has been withheld from the 
Senate and from the American people in a great many other cases 
not in relation to Cubans, but in relation to American citizens. 
Those will all come to the surface. We shall all see it some day; 
the Senate will have the opportunity of seeing it; the American 
people will have the opportunity of seeing it. 

As to this specific case and the charge made against the Foreign 
Relations Committee, I desire simply to say a single word. That 
committee had received no information that this man had been 
pardoned. The Committee on Foreign Relations began to consider 
this case about one month ago. The report they made is dated the 
1st day of February. We put the matter over from week to week at 
the request of the State Department, because we were told that the 
diplomatic negotiations which had been going on for about twenty- 
three months were about approaching a close, and the Depart¬ 
ment hoped in a few days to have this man pardoned. We put it 
over; and finally we reported the resolution, and we got the man’s 
pardon the next morning. In other words, twenty-three months 
were consumed in diplomatic negotiations; but after the matter 
was taken up and it was discussed by the committee and pre¬ 
sented at the bar of American public opinion, the news of the 
man’s pardon came by cable this morning, and we are sneered at 
because we are told he was going to be pardoned any way. 

Mr. GRAY. May I ask the Senator a question as to a matter of 

Mr. LODGE. Certainly. 

Mr. GRAY. The Senator from Massachusetts says that twenty- 
three months have been consumed by the State Dei>artment in 
negotiations in regard to the case of Sanguily. 

Mr. LODGE. I think I have stated the fact correctly. 

Mr. GRAY. Is it not a fact that the larger part of those nego¬ 
tiations, and the greater part of the time occupied in pursuing 
them, was consumed in discussing the treaty between the United 
States and Spain in regard to citizens of the United States who 
were arrested for participating in rebellion, without arms in their 
hands, and demanding for them a trial by a civil court under the 
treaty; and whether, at last, those negotiations were not success¬ 
ful in procuring that trial, and that the necessary delay was by 
reason of the procedure of the courts, which, of course, takes time? 

Mr. LODGE. I did not enter into what the diplomatic nego¬ 
tiations were about. 

Mr. GRAY. The Senator from Massachusetts gave that impres¬ 
sion; at least, I so understood him. 

Mr. LODGE. I stated that diplomatic negotiations had been 
going on in regard to this man’s case for twenty-three months, 
and that is absolutely true. 

Mr. GRAY. But the Senator gave the impression that futile 
negotiations were going on for twenty-three months, whereas at 
different stages the demands made by the State Department were 
acceded to by the Government of Spain, and the trial demanded 
before a civil court for Sanguily was granted after necessary de¬ 
lay owing to their form of procedure. 

Mr. LODGE. I did not say the negotiations were futile. That 
word was not used by me, but used by the Senator from Delaware. 

Mr. GRAY. I say that is the impression I got from what the 
Senator stated. 

Mr. LODGE. I did not so state, but I shall not quarrel with 
£G13 


43 


the Senator about that. All I said was that for twenty-three months 
diplomatic negotiations had been going on in regard to this man; that 
the question has been considered in the committee for one month; 
that the resolution was reported to the Senate yesterday, and this 
morning we have cable news that Sanguily is pardoned. Those 
are the simple facts, and I am perfectly willing to leave them. 

Mr. GRAY. Those are not the simple facts. 

Mr. LODGE. I beg the Senator’s pardon. Had not diplomatic 
negotiations been going on for twenty-three months? 

Mr. GRAY. There it is again, Mr. President. The simple 
statement is made that negotiations of a diplomatic character 
have been going on for twenty-three months, and the impression 
is made—I do not know whether it is sought to be made by the 
Senator from Massachusetts or not—that negotiations, which were 
futile in their character, have been going on all that time in regard 
to the release of Sanguily, whereas a greater part of the time was 
occupied in demanding the rights of Sanguily under the treaty 
with Spain. 

Mr. CHANDLER. Where was Sanguily all the time? 

Mr. LODGE. I did not say that the negotiations were futile. 
The Senator from Delaware keeps saying that. 

Mr. GRAY. I intended that the Senator should state or that I 
should state for him what the real facts were. 

Mr. LODGE. I omitted i^o facts. I say diplomatic negotiations 
were going on for twenty-three months, and during that time this 
man was in prison. There is no question about it. I do not say 
the negotiations have not been successful. We know they have 
been successful, because he was released this morning or yester¬ 
day. 

i say it was twenty-three months that the State Department was 
engaged in negotiations before the Senate did anything, so that 
they did not seem unreasonably impatient about- it. 

Mr. TELLER. Will the Senator allow me to state that this 
man was tried and condemned on December 8, 1895, and sen¬ 
tenced on December 3, 1895, more than a year ago. 

Mr. LODGE. He was sentenced more than a year ago, Mr. 
President. 

Mr. GRAY. The trial from which the appeal was made was 
had on the 3d of December, 1896. That was the trial against 
which the State Department protested. 

Mr. LODGE. He has been tried, and an appeal has been taken, 
and all that. But. Mr. President, I do not care to go into the 
details of it. The facts are perfectly well known. 

I only desire to say, in reply to what the Senator from California 
[Mr. White] has said, that the Committee on Foreign Relations 
had put this matter over two or three times at the request of the 
Secretary of State, because Sanguily was about to be released and 
action was about to be taken as the result of diplomatic negotia¬ 
tions. We had no information yesterday that he was pardoned, 
so far as I am aware. 

Mr. MORGAN. We have none now. 

Mr. LODGE. We had no information that he had been par¬ 
doned. 

Mr. WHITE. Nobody said you had. 

Mr. LODGE. I understood the Senator from California—if I 
misunderstood him, I am very sorry—to say that the committee 
yesterday had information that Sanguily had been pardoned. 

Mr. WHITE. I stated that the committee, as I understood it, 
2313 




44 

had the information in their pockets, or the chairman had in his 
pocket a petition filed by this gentleman’s counsel and himself, 
asking for pardon, and that they knew of the processes which had 
been had in connection with the affair. 

Mr. LODGE. What counsel does the Senator refer to? 

Mr. WHITE. The counsel, if I may be permitted to pronounce 
his name—although 1 have heretofore supposed that I had a little 
knowledge of the Spanish language—I may be permitted to say 
Julio Sanguily, notwithstanding a correction by the infallible 
authority at present upon the floor. [Laughter.] 

Mr. LODGE. The Senator is welcome to pronounce that name 
any way he likes. I thought from his knowledge of Spanish that 
he was mispronouncing the name humorously, as that is the com¬ 
mon form that is employed against Cubans. 

All I want to know is who the counsel is who has made this 
statement. I received no information and the committee received 
none. 

Mr. WHITE. I had no reference to the Senator, and was not 
thinking of him in connection with the matter. 

Mr. LODGE. I can only answer for the committee. The com¬ 
mittee received no statement. There was a dispatch read here by 
the Senator from Maine [Mr. Hale] from Mr. Dominiguez, I 
think, who said an appeal had been taken. That was read here in 
open Senate by the Senator from Maine. But there was nothing 
sent to the committee except a single communication from the 
State Department, and not from the counsel. That did not say 
that the pardon had been granted. It said what had been said 
before, that efforts were being made to obtain a pardon. 

Mr. GRAY. Let me ask the Senator whether the information 
he got in committee—as long as he has spoken of what occurred in 
the committee—was not to the effect that a pardon had been deter¬ 
mined upon just as soon as the condition precedent, which is requi¬ 
site under Spanish law, had been complied with? 

Mr. LODGE. I understood that they were trying to get a par¬ 
don. 

Mr. GRAY. I tried to get out the information that it had been 
determined upon by the Spanish executive. 

Mr. LODGE. Then the Senator said that a pardon had been 
granted. 

Mr. GRAY. That it had been determined to be granted as soon 
as the condition precedent, necessary under under Spanish law, 
had been complied with. 

Mr. LODGE. That is exactly what I said. I said that we 
received information that a pardon was shortly expected. 

Mr. GRAY. Yes. 

Mr. LODGE. And that it had not been granted. 

Mr. GRAY. Your previous statement was, unless I misunder¬ 
stood you—of course I have no altercation, and wall have no alter¬ 
cation, with the Senator—that the information was merefy that 
efforts were being made to obtain a pardon. 

Mr. LODGE. No; I mean that the process was going on for 
twenty-three months, or any period you please. 

Mr. GRAY. You said it was approaching a conclusion. 

Mr. LODGE. That was what we were told at the beginning of 
February, when we took the matter up—that it was approaching 
a conclusion. As the Senator well knows, we postponed the mat¬ 
ter from week to week on that account. 

2613 


45 


I did not mean to be drawn into this discussion. What I de¬ 
sired to say was that the committee did not have the information 
which the Senator from California attributed to it. I know noth¬ 
in"’ about the counsel except from the dispatch read by the Sena¬ 
tor from Maine. I did not then know that the Mr. Dominguez 
who is named in the dispatch was the counsel for Sanguily. 

* * * * * * 

Mr. WHITE. Mr. President, I do not wish to incommode tho 
Senators who have charge of the appropriation bills, and I do not 
intend to do so, and I will say but a very few words. 

The Senator from Massachusetts [Mr. Lodge] seems to think 
there has been a personal onslaught of some kind upon himself, 
and he was led to call my attention to the lack of enthusiasm created 
by my remarks made to the Senate yesterday. I presume his ob¬ 
ject in thus informing us was designed to excite my envy when 
contrasting my position with the enthusiastic demonstrations 
which ever attend his eloquent and relevant statements. 

However, I have lived long enough to know that there are many 
great men in this world and that I have no claim to greatness, 
and it is enough for me even temporarily to rest in the shadow of 
the mighty intellectual power whose instruction has been so 
generously given. I, perhaps, might survive some of the com¬ 
ments of the Senator, but I do' not know how I can exist in view 
of his criticism upon my pronunciation of the name of the party 
mentioned in the joint resolution. I ventured to call him Julio 
Sanguily, and the Senate has been informed that I mispronounced 
his name, and this I did in a disrespectful manner. If it were 
not for my faith in the abilities of the Senator from Massachusetts 
and my consequent belief that all of the Spanish scholars I have 
ever met have been mistaken as to the pronunciation of such 
names, I would, perhaps, hesitatingly venture to adhere to my own 
view. 1 will, however, study the lesson proffered by the Senator 
from Massachusetts and shall endeavor to absorb some of that 
learning which must be useful to the Senate, pertinent to this 
debate, and natural to the Senator from Massachusetts. 

I regret that my friend the Senator from Florida [Mr. Call] 
also accuses me of having taken up too much time. It is seldom 
that I take the floor save for an inquiry, whereas the Senator from 
Florida is a chronic speaker upon the subject of Cuba. He is not in 
a position to rebuke me for my single infraction. Now, that Julio 
Sanguily (I hope I may be permitted to continue to so pronounce his 
name) is free, we are treated to the case of Ruiz, and are told upon 
the authority of a newspaper, infallible, of course, before all tribu¬ 
nals, that Ruiz was badly treated, murdered in a dungeon. Com¬ 
ments on this topic are directed at me, and, as far as I am able to 
appreciate the Senator’s meaning, the insinuation is conveyed that 
I and other Senators who do not favor declaring war without 
ascertaining what we are to right about are guilty of the murder 
of Ruiz, and this because Sanguily has been pardoned. This 
conclusion might be considered slightly illogical by some, but not 
by the Senator from Florida. 

Mr. HALE. Let me ask the Senator whether any motion has 
been made to substitute any other island for Cuba? 

Mr. WHITE. I will say to the Senator from Maine that no 
motion has been made, but there are insinuations that something 
of the kind is coming; that if it be true that Sanguily has con- 
2613 


46 


fessed his guilt, nevertheless there is suffering elsewhere, and it 
will be urged that while we were mistaken in the case of Sanguily, 
a valid cause of complaint must exist as to some one. There must 
be an oppressed innocent somewhere, and we will be fully informed 
regarding the outrage by illustrations in the newspapers and 
magnificent orations in the ►Senate. 

Mr. HALE. But no motion has been made to substitute any 
other island for Cuba? 

Mr. WHITE. Not yet. 

Mr. GALLINGER. We are going to put in the State of Maine 
next instead of Cuba. 

Mr. WHITE. The Senator from Florida, after commenting 
upon the immense amount of time that I took in discussing the 
Cuban question yesterday, in order to be truly consistent, pro¬ 
ceeded to make a speech upon the subject himself. 

I yielded to the appropriation bills, and I will do so again in the 
hope that these important measures may be passed, and that we 
may establish a field day for the discussion of Cuba, and give 
notice to all alleged suffering patriots, wherever found, that their 
cases will be taken up as soon as the Calendar will permit, and our 
Navy increased correspondingly to the necessities of our bellig¬ 
erency. 






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